LIBRARY 

UNlV  R-iTY  OF 

CAL.FORNIA 
SAN  DIEGO 


THE  NEW  CONSTITUTIONS 
OF  EUROPE 


THE 

NEW    CONSTITUTIONS 
OF   EUROPE 

BY 
HOWARD  LEE  McBAIN 

Eaton  Professor  of  Municipal  Science  and 
Administration  in  Columbia  University 

AND 

LINDSAY  ROGERS 

Associate  Professor  of  Government 
in  Columbia  University 


GARDEN    CITY  NEW   YORK 

DOUBLEDAY,   PAGE   &   COMPANY 
1922 


COPYBIGHT,    1922,   BY 

DOUBLEDAT,   PAGE   &   COMPANY 

AT.T.  RIGHTS   RESERVED,   INCLUDING   THAT    OF 

TRANSLATION  INTO  FOREIGN  LANGUAGES, 

INCLUDING  THE   SCANDINAVIAN 


MINTED  IN  THE  UNITED  STATES 

AT 
THE  COUNTRY  LIFE  PRESS,  GARDEN  CITY,  N.  X. 

First  Edition 


PREFACE 

CONSTITUTIONS  are  at  best  only  the  skeletons  of  bodies 
politic.  But  like  most  skeletons  they  are  of  fundamental 
importance.  They  determine  the  height,  the  solidity,  and 
something  concerning  the  shape,  general  contour,  and 
functional  possibilities  of  the  bodies  they  support.  It  re- 
quires the  superb  imagination  of  a  Mr.  Wells  to  be  fairly 
certain  that,  when  200,000  or  250,000  years  ago  the  Heidel- 
berg man  was  in  operative  possession  of  his  now  famous 
jaw-bone,  "the  sabre-toothed  tiger  was  declining  and  the 
lion  was  spreading  over  Europe;"  or  to  construct  a  con- 
vincing story  of  the  "civilization"  of  the  Neanderthal 
men  from  the  skeleton  of  a  youth  who  "apparently"  was 
"deliberately  interred"  in  a  "sleeping  posture"  with  his 
head  "on  a  number  of  flint  fragments."  But  it  requires 
no  osteologist  to  tell  us  that  living  bones  are  of  importance, 
not  only  in  respect  to  their  articulation  one  to  another  but 
also  in  respect  to  the  motive  forces  that  govern  their 
activities.  An  exhibit  of  skeletons  is  not  devoid  of  in- 
terest and  of  instructional  potentialities;  the  veriest  lay- 
man can  distinguish  the  frame  of  a  quadruped  from  that  of 
a  biped,  or  the  skull  of  an  ichthyosaurus  from  that  of  a  man. 

It  has  seemed  to  us  desirable  and  useful,  therefore, 
to  bring  the  constitutional  skeletons  of  the  new  govern- 
ments of  Europe  together  in  a  single  volume  where  they 
could  be  conveniently  analyzed  and  compared.  Not  all 
of  these  constitutions  have  been  heretofore  translated  into 
English,  and  many  of  them  have  been  difficult  of  access 
in  any  version.  They  are  indispensable  first  materials 
for  any  comparative  study  of  the  remodeled  political  in- 
stitutions of  Europe. 


vi  PREFACE 

A  word  or  two  is  necessary  in  explanation  of  our  plan  of 
inclusion  and  exclusion.  In  addition  to  the  constitution 
of  the  German  Reich,  we  have  included  the  constitution  of 
the  important  state  of  Prussia  and  a  brief  description 
of  the  constitutions  of  several  of  the  other  German  states. 
In  Russia,  in  spite  of  a  written  constitution,  apparently 
no  distinction  is  made  between  fundamental  and  ordinary 
law.  The  constitution  here  incorporated  has  been  modi- 
fied by  laws  that  have  not  been  specifically  enacted 
as  constitutional  amendments.  In  essence,  however,  it 
probably  portrays  the  general  scheme  of  organization 
that  is  in  operation.  Of  the  new  or  succession  states,  we 
have  included  the  constitutions  of  Finland,  Esthonia, 
Poland,  Danzig,  Czechoslovakia,  Jugoslavia,  and  Austria, 
which  is  a  new  state  in  all  but  name.  No  new  constitution 
has  been  adopted  in  the  new  state  of  Hungary.  Latvia  is 
still  governed  by  a  constituent  assembly  elected  in  April, 
1920;  it  is  anticipated  that  a  permanent  constitution  will 
be  promulgated  during  the  summer  of  1922.  Lithuania 
is  still  operating  under  a  provisional  constitution  adopted 
April  4,  1919.  D'Annunzio's  constitution  for  Fiume  was 
proclaimed  in  August,  1920;  but  since  the  Treaty  of 
Rapallo  (November,  1920),  by  which  the  Free  State  of 
Fiume  was  legally  recognized,  a  constituent  assembly  has 
been  called;  and  although  this  body  has  been  far  from 
harmonious,  it  seems  probable  that  D'Annunzio's  unique 
document,  which  has  not  been  here  included,  will  shortly 
be  replaced  by  a  more  adequate  instrument.  Absorbed 
in  armed  conflict  with  the  Italians  and  the  Serbs  until  the 
summer  of  1920,  Albania,  likewise,  has  not  yet  perfected 
a  permanent  form  of  government. 

Of  the  old  countries  that  have  not  succumbed  to  revolu- 
tions, Belgium  is  the  only  one  in  which  the  constitution 
has  been  subjected  to  important  revision  since  the  war. 
For  this  reason — and  because  it  served  as  a  model  for  the 
drafting  committees  in  the  new  states — it  has  been  in- 


PREFACE  vii 

eluded  in  the  Appendix,  with  the  new  provisions  translated 
into  English  for  what  is,  we  believe,  the  first  time.  Al- 
though France  and  Italy  have  enacted  important  new 
electoral  laws,  no  changes  have  been  made  in  their  "con- 
stitutional laws."  Even  so,  it  has  seemed  to  us  that  the 
usefulness  of  this  volume  for  purposes  of  comparison 
would  be  increased  by  incorporating  the  French  and  Ital- 
ian constitutions  in  the  Appendix.  Certain  other  docu- 
ments of  interest  are  also  printed  in  the  Appendix.  The 
voluminous  footnotes  throughout  the  introductions  make 
unnecessary  any  separate  bibliographical  apparatus. 

Of  the  constitutions  embraced  within  this  volume  those 
of  Prussia,  Austria,  and  Finland  have  not,  so  far  as  we 
know,  been  previously  translated  into  English.  In  the 
official  or  semi-official  English  texts  of  certain  other  con- 
stitutions we  have  ventured  to  make  a  few  corrections 
that  seemed  to  us  imperative.  The  constitutions  of  the 
Central  Powers  presented  some  special  difficulties.  What- 
ever may  be  thought  of  the  democratic  features  of  the 
German  constitution,  linguistically  it  leaves  something  to 
be  desired,  and,  to  speak  mildly,  it  is  rather  inclusive. 
On  the  other  hand,  the  Prussian  document,  although  ob- 
viously modeled  on  the  constitution  of  the  Reich,  substi- 
tutes simplicity  for  complexity  and  is  in  consequence 
a  well-drafted  instrument  of  government.  It  is  the 
Austrian  constitution,  however,  that  has  no  competitor  for 
the  post  of  primacy  in  the  matter  of  anfractuous  verbiage. 
For  assistance  in  translating  the  German,  Prussian,  and 
Austrian  documents  we  are  deeply  indebted  to  Mr.  Ell- 
wood  Wadsworth  Kemp,  Jr.,  and  Mr.  Riidiger  Bilden. 

In  the  introductory  chapters  of  this  volume  we  have 
discussed  certain  principles  of  politics  and  public  law  that 
seem  to  us  to  be  pertinent  to  a  study  of  the  new  funda- 
mental laws  of  democratic  states.  In  many  instances  we 
have  discussed  these  principles  with  special  reference  to 
English  practices  and  problems;  for  England,  without  a 


viii  PREFACE 

written  constitution,  is  after  all  the  mother  country  of 
parliamentary  government.  We  have  also  in  some  in- 
stances discussed  matters  that  supplement  the  new  consti- 
tutions in  important  particulars.  We  have  made  no 
attempt,  however,  to  digest  the  constitutions  themselves, 
and  with  few  exceptions  we  have  made  no  detailed  com- 
parison of  the  institutions  which  they  set  up.  In  other 
words,  the  texts  of  the  constitutions  are  not  merely  a 
referential  appendix:  they  are  an  integral  part  of  this  book. 
From  them  the  interested  student  may  make  his  own  com- 
parative study  and  draw  his  own  inferences  and  conclu- 
sions. We  have  sought  to  supply  the  materials  for  study 
rather  than  a  fabricated  product. 

H.  L.  McB. 
L.  R. 


CONTENTS 

PAGE 

PREFACE     -. . '   * v 

PART  I.    INTRODUCTION 

CHAPTER 

I.    PRINCES  AND  PARLIAMENTS      ......  1 

II.    LEGISLATURES  AND  BUREAUCRATS       ....  26 

III.  SECONDARY  CHAMBERS 38 

IV.  SEGMENTATION  AND  FEDERATION 55 

V.    PROPORTIONAL  REPRESENTATION    .     .  •  .     .      .  83 

VI.    FUNCTIONAL  REPRESENTATION 117 

VII.     DEMOCRATS  AND  DIPLOMATS 136 

VIII.     INDIVIDUALISM  AND  SOCIALISM 154 

PART  II.    THE  NEW  CONSTITUTIONS  OF  EUROPE 

IX.     GERMANY 

1.  Historical  Note 167 

2.  Constitution  of  the  German  Reich     .      .      .  176 

X.    PRUSSIA 

1.  Historical  Note 213 

2.  Constitution  of  the  Free  State  of  Prussia      .  217 

XI.    BAVARIA,  WURTTEMBERG,  AND  BADEN     .     .     .  233 

XII.     AUSTRIA 

1.  Historical  Note  .      .      .      .      .      ...      .  241 

2.  Constitution  of  Austria      .      .      .      .      .      .  256 

XIII.     CZECHOSLOVAKIA 

1.  Historical  Note 307 

2.  The  Constitutional  Charter  of  the  Czecho- 

slovak Republic 310 


CONTENTS 

CHAPTER  PAGE 

XIV.    JUGOSLAVIA 

1.  Historical  Note     . 343 

2.  Constitution  of  the  Kingdom  of  the  Serbs, 

Croats,  and  Slovenes  (Jugoslavia)     .     .     348 

XV.    RUSSIA 

1.  Historical  Note     ........     379 

2.  The  Russian  Constitution 385 

XVI.    POLAND 

1.  Historical  Note 401 

2.  Constitution  of  the  Republic  of  Poland     .     405 

XVII.    THE  FREE  CITY  OF  DANZIG 

1.  Historical  Note 426 

2.  Constitution  of  the  Free  and  Hanseatic 

City  of  Danzig 429 

3.  Resolution  Adopted  by  the  Council  of  the 

League  of  Nations,  November  17, 1920  .     448 

XVIII.      ESTHONIA 

1.  Historical  Note 452 

2.  The  Constitution  of  the  Esthonian  Republic    454 

XIX.    FINLAND 

1.  Historical  Note 465 

2.  The  Constitution  of  Finland      ....     468 

APPENDICES 

I.    BELGIUM 

1.  Historical  Note 499 

2.  Constitution  of  Belgium,  February  7,  1831, 

with  Amendments  of  1893  and  1921    .      .     501 

II.    FRANCE 

1.  Historical  Note 521 

2.  Fundamental  Laws  of  France      ....     523 

III.  ITALY 

1.  Historical  Note        .      .  550 

2.  Fundamental  Statute  of  March  4,  1848        .     551 

3.  Law  of  Guarantees  of  May  13,  1871        .      .     561 

IV.  THE  RECOGNITION  OF  NEW  STATES  SINCE  1913 

1.  Note  on  Recognition  of  Certain  States   .      .     565 

2.  List  of  Recognition  of  New  States    .      .      .     570 

V.    REPORT  OF  THE  SECOND  CHAMBER  CONFERENCE      573 
INDEX  ,    603 


PART  I 
INTRODUCTION 


THE   NEW   CONSTITUTIONS 
OF   EUROPE 

CHAPTER  I 
PRINCES  AND  PARLIAMENTS 

To  THE  student  of  politics  the  World  War  was  of  striking 
interest  entirely  apart  from  its  international  aspects  and 
the  question  of  victory  or  defeat.  The  democracies  at  war 
considered  themselves  justified  in  temporarily  adopting 
the  autocratic  principles  and  methods  of  their  adversaries 
in  order  more  efficiently  to  pursue  the  struggle.  Enor- 
mous powers  were  delegated  to  cabinets  and  presidents 
who  became  practical  dictators.  Legislative  control  was 
in  abeyance;  the  principal  functions  vouchsafed  to  parlia- 
ments were  to  open  the  purse  and  to  grant  the  necessary 
freedom  of  action  to  the  executive.  Individual  liberty 
comprehended  little  more  than  the  liberty  to  do  as  the 
government  required.  Measures  of  socialization  and 
nationalization  were  resorted  to  on  a  staggering  scale — 
industry,  food,  fuel,  clothing,  transport,  communications 
— all  were  under  the  control  of  the  state;  and  if  life  was 
conscripted  more  freely  than  property,  the  difference  was 
one  of  degree  rather  than  of  principle. 

Statesmen  recognized  the  inconsistency  of  requiring 
men  to  fight  and  women  to  make  munitions  when  they 
could  not  enter  the  polling  booth,  and  so,  almost  as  a  mat- 
ter of  course,  there  were  vast  extensions  of  the  electorate. 
Woman's  suffrage  and  proportional  representation — two 
long,  hard-fought  causes — were  no  longer  debated  but  were 
given  legislative  approval;  and  problems  of  democracy 

1 


NEW  CONSTITUTIONS  OF  EUROPE 


Effects  even 
in  neutral 
countries 


Nationality 
and  political 
organization 


Increase  in 
number  of 
states 


such  as  the  control  of  foreign  relations  and  the  regulation 
of  vast  bureaucracies  thrust  themselves  forward  for  new 
and  more  serious  consideration. 

The  political  dislocation  was  felt  in  neutral  as  well  as 
belligerent  countries.  As  early  as  the  autumn  of  1914, 
for  example,  the  Swiss  Federal  Council  was  given  an 
ordinance-making  authority  more  in  keeping  with  the 
decree  of  the  Roman  Senate  authorizing  the  consuls  "to 
see  that  the  Republic  took  no  harm  "  than  with  the  decen- 
tralized traditions  of  Swiss  constitutional  law.  These  mod- 
ifications of  political  theory  and  governmental  arrange- 
ments and  the  new  emphasis  on  certain  mechanisms  were 
due  primarily  to  the  magnitude  of  armed  conflict.  To  some 
extent,  however,  the  tendency  was  one  of  acceleration 
rather  than  of  origination  and  it  is  certain  that  the  pendu- 
lum will  never  make  a  full  swing  backward.  The  return 
to  the  political  status  quo  ante  will  be  as  difficult,  if  less 
pressing,  as  the  return  to  economic  normalcy  is  proving 
to  be. 

But  of  chief  interest,  perhaps,  is  the  fact  that  during 
the  war  four  great  empires  crumbled  and  a  fifth  was 
profoundly  affected.  The  Peace  Conference  in  attempt- 
ing to  resettle  Europe  recognized  the  principle  of  nation- 
ality as  the  basis  of  political  organization  and  created  out 
of  old  empires  a  number  of  new  states.  An  altered  atti- 
tude was  evident  also  in  the  British  Empire.  The  right 
of  the  Dominions  to  control  in  effect  their  own  foreign 
policies,  and  the  right  of  the  "subject"  peoples  of  India, 
Egypt,  and  Ireland  to  have  a  greater  measure  of  self- 
government,  were  no  longer  seriously  questioned. 

The  creation  of  new  political  entities  out  of  the  ruins 
of  the  European  empires  was,  on  the  surface  at  least,  at 
variance  with  what  seemed  to  be  a  fairly  constant  tendency 
in  the  development  of  world  politics.  From  hundreds  of 
members — after  the  Peace  of  Westphalia  Germany  alone 
had  more  than  300  states — the  community  of  states  had 


PRINCES  AND  PARLIAMENTS 


been  reduced  to  barely  more  than  fifty.  The  United 
States,  the  British  Empire,  Germany,  Austria-Hungary, 
Russia,  Italy,  and  Turkey  were  all  composite  systems. 
There  were  only  seven  European  states  which  did  not 
contain  within  their  continental  boundaries  more  than 
one  nation.  These  were  Andorra,  Denmark,  San  Ma- 
rino, Liechtenstein,  Monaco,  Holland,  and  Portugal.1  As 
a  result  of  the  war,  Poland,  Esthonia,  Czechoslovakia, 
Austria,  Finland,  and  Danzig  have  all  adopted  written 
instruments  of  government  with  some  markedly  demo- 
cratic features.  Germany  and  the  German  states  aban- 
doned the  monarchical  principle  (John  II  of  Liechten- 
stein is  the  only  prince  remaining  in  Central  Europe). 
Hungary  continues  her  old  form  of  government  (without  a 
king,  however,  for  the  present);  and  Jugoslavia  (the 
Kingdom  of  the  Serbs,  Croats,  and  Slovenes),  although  a 
constitutional  monarchy,  has  adopted  a  very  liberal  con- 
stitution. In  Russia,  apart  from  the  economic  philosophy 
of  communism,  the  soviet  principle  of  government  is,  to 
quote  a  conservative  critic,  "ingenious  and  interesting  as 
a  novel  form  of  constitution"  and  "deserves  to  be  studied, 
apart  from  any  doctrines,  on  its  own  merits."2  In  Asia, 
four  new  states  will  attempt  republican  governments — 
the  Far  Eastern  Republic,  Georgia,  Armenia,  and  Azer- 


'The  list  is  that  in  The  Statesman's  Y ear-Book,  1915.  "In  July,  1914,  a  map 
of  Europe  showed  that  there  were  on  the  continent  twenty-two  separate  states, 
counting  Germany  as  one;  to-day  there  are  thirty-five,  again  counting  Germany 
as  one.  The  states  that  were  neutral  in  the  Great  War  have  not  suffered  any 
changes  save  only  Denmark,  which  in  November,  1918,  became  separated  from 
Iceland.  Iceland  has  been  recognized  by  Denmark  as  a  sovereign  state,  the 
only  connection  between  the  two  being  Christian  X,  who  is  King  of  Denmark 
and  also  King  of  Iceland."  Two  other  states,  though  technically  neutral,  were 
influenced  by  the  results  of  the  war.  Luxemburg  is  no  longer  part  of  the  German 
Zollverein  and  a  referendum  in  1919  declared  in  favor  of  an  economic  union  with 
France.  Before  the  war,  also,  Liechtenstein  was  practically  a  dependency  of 
Austria,  but  on  November  7,  1918,  its  Diet  resolved  on  complete  independence. 
"The  States  of  Modern  Europe,"  The  New  Europe,  September  30,  1920. 

*Bryce,  Modern  Democracies,  Vol.  II,  p.  583  (New  York,  1921).  A  less  con- 
servative critic  thinks  that  the  experiment  involves  "  the  most  vital  question  of 
political  theory  and  practice  in  Central  and  Eastern  Europe  to-day."  The 
New  Statesman,  January  17,  1920. 


Growth  of 

democratic 

principle 


NEW  CONSTITUTIONS  OF  EUROPE 


Increase  in 
number  of 
republics 


baijan,  the  last  named  being  particularly  interesting  as 
marking  the  first  democratic!  experiment  in  a  Mussulman 
country. 

A  century  ago  there  was  in  the  Old  World  only  one  spot 
in  which  the  working  of  democracy  could  be  studied.  In 
1914  there  were  five  republics.  Within  a  few  months  the 
number  has  been  trebled.1  It  has  been  a  remarkable 
period  of  constitution  drafting.  That  so  many  peoples 
unaccustomed  to  self-government  should  thus  accept  the 
democratic  principle  is  a  genuine  tribute  to  that  principle. 
It  is  none  the  less  a  danger.  It  will  subject  republican 
government  to  a  terrific  strain.2  This  will  not  be  any 
the  less  so  because  of  the  more  socialistic  schemes  of  dis- 
tributive justice  that  the  new  democracies  are  attempting 
to  evolve. 


'In  1916  an  English  writer  classified  existing  methods  of  government  as  fol- 
lows: Europe — 5  republics  (Switzerland,  Portugal,  San  Marino,  France,  An- 
dorra); 14  constitutional  monarchies  (Austria,  Bulgaria,  Rumania,  Serbia, 
Montenegro,  Greece,  Italy,  Spain,  Holland,  Belgium,  Denmark,  Sweden, 
Norway,  Luxemburg),  and  3  despotic  monarchies  (Russia,  Germany,  and 
Turkey).  In  Asia  he  listed  one  republic  (China);  2  limited  monarchies 
(Japan  and  Siam),  and  5  despotic  monarchies  (Persia,  Afghanistan,  Nepaul, 
Oman,  and  Bhutan).  The  inclusion  of  Japan  as  a  "limited"  monarchy  and 
Germany  as  a  "despotic"  monarchy  shows  the  influence  of  the  war  psychology. 
In  Africa  there  were  one  republic  (Liberia)  and  two  despotic  monarchies  (Abys- 
sinia and  Morocco).  America  had  21  republics.  Of  the  fifty-four  govern- 
ments mentioned,  28  were  republics  (only  seven  outside  of  America),  16  limited 
and  10  despotic  monarchies.  A.  E.  Duchesne,  Democracy  and  Empire,  p.  109 
(Oxford,  1916).  This  enumeration  does  not  include  the  self-governing  British 
Dominions. 

2"  Neither  the  conviction  that  power  is  better  entrusted  to  the  people  than  to 
a  ruling  One  or  Few,  nor  the  desire  of  the  average  man  to  share  in  the  govern- 
ment of  his  own  community,  has  in  fact  been  a  strong  force  inducing  political 
change.  Popular  government  has  been  usually  sought  and  won  and  valued, 
not  as  a  good  thing  in  itself,  but  as  a  means  for  getting  rid  of  tangible  grievances 
or  securing  tangible  benefits,  and  when  those  objects  have  been  attained,  the 
interest  in  it  has  generally  tended  to  decline.  .  .  .  Nevertheless,  although 
democracy  has  spread,  and  although  no  country  that  has  tried  it  shows  any 
signs  of  forsaking  it,  we  are  not  yet  entitled  to  hold  with  the  men  of  1789  that 
it  is  the  natural  and  therefore  in  the  long  run  the  inevitable  form  of  government. 
.  .  .  Popular  government  has  not  yet  been  proved  to  guarantee,  always  and 
everywhere,  good  government.  If  it  be  improbable,  yet  it  is  not  unthinkable 
that  as  in  many  countries  impatience  with  tangible  evils  substituted  democracy 
for  monarchy  or  oligarchy,  a  like  impatience  might  some  day  reverse  the  proc- 
ess." Bryce,  Modern  Democracies,  Vol.  I,  pp.  41-42.  In  most  democracies, 
however,  it  is  probable  that  any  possible  reversal  to  a  monarchy  or  oligarchy 
will  be  by  way  of  an  attempted  dictatorship  of  the  proletariat. 


PRINCES  AND  PARLIAMENTS 


The  results  of  the  war  were  so  decisive,  the  crumbling 
of  the  empires  was  so  complete  that  in  most  of  the  new 
states  the  "founding  fathers"  were  at  liberty  to  fashion 
their  governmental  arrangements  as  they  wished.1  Tra- 
dition had  been  so  rudely  shaken  that  they  felt  little  obli- 
gation toward  or  respect  for  existing  institutions.  They 
were  footloose.  They  could  borrow  and  adopt  from  the 
written  constitutions  of  the  world.  They  could  even  im- 
provise out  of  hand.  Even  so,  before  discussing  some  of 
the  more  striking  features  of  the  new  instruments  of  gov- 
ernment, it  may  be  worth  while  to  venture  a  few  generali- 
zations on  what  had  gone  before;  for  the  abruptness  of  a 
break  in  institutional  life  is  often  more  apparent  than  real. 
In  politics  a  generalization  is  not  infrequently  a  theft  from 
the  truth;  there  are,  nevertheless,  tendencies  that  show 
their  heads  above  the  forest  of  details. 


The  break 
in  political 
traditions 


The  age  of  constitution  making  that  may  be  compared 
with  the  recent  period  in  Europe  was  in  the  early  part  of 
the  nineteenth  century.  It  resulted  largely  from  the  in- 
fluence of  Montesquieu.2  In  the  seventeenth  and  eight- 
eenth centuries  "it  appeared  to  be  essential  to  the  modern 
notion  of  the  state  that  there  should  be  somewhere  a  power 
capable  of  making  laws,  and  which,  accordingly,  being 

l"  Another  danger  of  which  a  Peace  Conference  will,  we  may  hope,  beware, 
is  that  of  assuming  responsibility  for  framing  constitutions  and  erecting  govern- 
ments in  States  which  the  treaty  of  peace  will  call  into  existence.  ...  It 
would  be  better  to  let  the  peoples  of  those  regions  settle  for  themselves  their 
relations  with  one  another  and  their  form  of  government  rather  than  for  the 
treaty-making  Powers  to  undertake  the  task.  If  the  latter  were  to  attempt 
it,  they  could  hardly  escape  liability  for  maintaining  and  guiding  the  course  of 
whatever  government  they  had  set  up,  a  thing  always  full  of  risks  for  all  parties 
concerned,  and  specially  difficult  when  undertaken  by  a  Concert  of  Powers. 
.  .  .  The  new  States  so  constituted  or  enlarged  will  doubtless  have  plenty  of 
troubles  to  face,  but  each  had  better  face  those  troubles  for  itself  and  learn  by 
its  own  experience."  Lord  Bryce,  Essays  and  Addresses  in  War  Time,  pp.  170- 
171  (New  York,  1918).  With  one  or  two  exceptions  as  to  Germany  and  Austria 
the  Peace  Conference  followed  Lord  Bryce's  advice.  For  questions  as  to  the 
protection  of  minorities  and  the  case  of  Danzig,  see  below,  Chapters  V,  XVII. 

*Sir  John  Seeley  calls  the  period  that  commenced  with  American  independ- 
ence "preeminently  the  constitutional  period  of  the  modern  world."  Intro- 
duction to  Political  Science,  p.  209  (London,  1896). 


Constitu- 
tions of 
seventeenth 
and 

eighteenth 
centuries 


6 


NEW  CONSTITUTIONS  OF  EUROPE 


Advantages 
of  monarchy 


Defects  of 

absolute 

monarchy 


the  source  of  law,  could  not  be  bound  by  any  laws :  and  it 
was  essential  to  the  ideal  of  the  modern  state — in  a  normal 
and  not  anarchical  condition — that  this  power  should  be 
supreme;  that  it  should  receive  the  complete  obedience  of 
an  overwhelming  majority  of  the  citizens,  and  through 
their  obedience  be  able  to  bring  the  organized  force  of 
the  community  to  crush  any  open  resistance  of  individu- 
als or  groups."1  This  ideal  was  realized  by  the  con- 
centration of  authority  in  one  individual  and  it  was 
deemed  that  the  disadvantages  of  monarchy  were  out- 
weighed by  the  advantages  of  order  and  the  avoidance  of 
anarchy. 

Such  a  system,  however,  could  not  perdure,  for,  in  the 
language  of  Professor  Sidgwick,  "there  are  two  different 
kinds  of  defects  in  absolute  monarchy.  It  is  not  only  a 
defect  that  the  supreme  power  of  law-making  is  in  the 
hands  of  an  individual,  who  may  not  use  it  in  the  interests 
of  the  community:  it  is  a  further  defect  that  the  execution 
of  the  laws  being  under  the  control  of  the  same  person, 
there  is  no  sufficient  guarantee  that  he  will  observe  even 
his  own  laws,  if  passion  or  favor  urge  him  to  break  them." 
It  follows,  then,  that  "  there  is  an  obvious  gain  in  separat- 
ing legislative  from  executive  and  judicial  functions  in 
such  a  way  that  those  who  execute  the  law  are  as  much 
bound  to  obey  it  as  those  on  whom  they  execute  it;  and 
that  the  question  whether  they  have  obeyed  it  or  not  may 
always  be  brought  before  impartial  judges  for  decision."2 
This  separation  of  powers  was  realized  to  a  degree  in  the 

^enry  Sidgwick,  The  Development  of  European  Polity,  p.  141  (London,  1903). 

*Ibid.,  p.  41 3.  Cf .  Sidgwick,  The  Elements  of  Politics,  Chapter  XX,  p.  361  (Lon- 
don, 1891).  "But  there  is  no  certainty  that  a  representative  legislature,  chosen 
by  universal  suffrage,  will  not  interfere  with  the  free  action  of  individuals  more 
than  an  absolute  monarch  would:  the  essential  difference  is  merely  that  under 
absolute  monarchy  a  majority  of  sane  adults  may  be  forced  to  submit  to  laws 
that  they  permanently  dislike,  whereas,  if  a  popularly  elected  assembly  is  su- 
preme in  legislation,  this  coercion  can  only  be  applied  to  a  minority.  To  this 
extent  constitutional  freedom  affords  a  security  for  civil  freedom;  but  a  priori 
reasoning  and  experience  combine  to  show  that  there  is  no  further  connection 
between  the  two." 


PRINCES  AND  PARLIAMENTS 


English  constitution.1  By  erroneously  describing  it, 
Montesquieu  transformed  the  English  constitution  into 
an  idea.  His  inaccuracy  did  not  lessen — no  doubt  it 
increased — the  influence  of  his  IS  Esprit  des  Lois.  In  any 
event,  it  may  truthfully  be  said  that  England  had  the 
"mother  of  parliaments."2 

On  the  continent  constitutional  monarchy  developed 
two  general  types — there  being,  of  course,  many  minor 
differences  with  regard  to  the  suffrage,  second  chambers, 
legislative  powers,  and  the  control  of  the  executive. 
Bluntschli  called  the  types  "true"  and  "false,"  which 
was  on  a  par  with  his  characterization  of  the  state  as 
"masculine"  and  the  church  as  "feminine."  Suffice  it  to 
say  that  in  the  one  case,  Germany  being  the  best  example, 
the  hereditary  monarch  had  real  executive  and  legislative 
authority,  the  latter  being  partly  indirect.  He  governed 
as  well  as  reigned,  even  though  he  had  octroyed  a  constitu- 
tion and  had  permitted  certain  formal  limitations  on  his 
powers.  The  accepted  philosophy  of  the  state  was  that 
political  power  was  possessed,  not  by  the  people,  as  in 
England  after  1688,  but  by  the  monarch;  and  the  constitu- 
tional arrangements  did  little  to  contradict  this  theory.3 

The  other  type  was  the  English  type.  This  was  the 
more  prevalent  type,  especially  in  the  Romance  coun- 
tries. Belgium  in  1831;  Portugal  after  1852;  Sardinia  in 
1848  (extended  to  the  rest  of  Italy  by  1870) ;  Holland  after 
1848,  and  Spain  after  1876 — all  drew  in  large  measure  on 
England.  Even  greater  borrowings  were  made  by  France 

l"  Theological  theory  having  fixed  the  principle  of  kingship,  practice  was  to 
settle  the  problem  of  the  control  of  the  kingship  by  constitutional  government 
— the  special  contribution  of  England  to  the  political  systems  of  history.  The 
solution  emerged  in  the  English  way,  fortuitously,  out  of  the  party  situation 
developed  under  William  and  Anne,  and  further  under  George  I,  and  finally 
crystallized,  as  it  were,  by  the  personality  of  Walpole.  Contrary  to  the  common 
account  of  it,  the  solution  was  not  planned.  It  came  about."  J.  M.  Robert- 
son, Bolingbroke  and  Walpole,  p.  33  (London,  1919). 

«See  A.  F.  Pollard,  The  Evolution  of  Parliament,  Chapter  XII  (London,  1920). 

*See  Willoughby  and  Rogers,  An  Introduction  to  the  Problem  of  Government, 
Chapter  XX  (New  York,  1921). 


Montesquieu 
and  the 
English 
constitution 


Types  of 
constitu- 
tional 
monarchy 


German 
type 


English 
type 


8          NEW  CONSTITUTIONS  OF  EUROPE 

and  the  British  Dominions.  France  embodied  the  Eng- 
lish cabinet  system  in  a  republican  constitution,  where  it 
came  to  be  profoundly  modified  in  actual  practice  by 
multiple  parties,  a  strong  second  chamber,  and  the  enforce- 
ment of  executive  responsibility  without  the  complement 
of  dissolution.  The  Dominions  employed  cabinet  govern- 
ment in  federal  systems,  where  the  powers  of  the  titular 
executive  became  even  more  attenuated  than  in  England 
or  in  France.  The  federal  republics  of  the  United  States 
and  Switzerland  stand  outside  the  European  development 
although  they  learned  from  it  in  the  earlier  stages  and  in- 
fluenced it  in  its  later  modifications.1 

Political  Great  Britain  adapted  her  constitution  to  the  require- 

doctrines          ments  of  the  nineteenth  century  in  comparative  calm; 

1815-1880  ,  .,  . .  .  ^  .    j 

but  progress  on  the  continent  01  Europe  was  accompanied 
by  much  violence.2  "From  the  fall  of  Napoleon's  empire 
for  full  two-thirds  of  a  century  agitation  was  continuous 
and  wars  were  not  infrequent  for  the  realization  on  the 
Continent  of  political  ideas  that  had  been  made  prominent 
by  the  French  Revolution.  Until  the  middle  of  the  cen- 
tury the  history  of  the  period  is  punctuated  with  insurrec- 
tions; after  1850  the  type  of  disturbance  changes  to 
international  war."  From  the  point  of  view  of  political 
philosophy,  these  sixty-five  years  (1815-1880)  of  strenuous 
statecraft  show  "three  bodies  of  doctrine  occupying  suc- 
cessively the  chief  place  in  the  current  of  speculation. 
The  first  was  constitutionalism,  which  dominated  thought 
till  the  middle  of  the  century.  The  second  was  national- 

1There  is  an  admirable  though  unsympathetic  summary  of  this  constitution- 
making  in  the  first  essay  of  Sir  Henry  Maine's  Popular  Government  (London, 
1885).  He  has  some  interesting  remarks  on  "two  events,  one  of  which  greatly 
encouraged,  while  the  other  in  the  end  greatly  discouraged,  the  tendency  of 
popular  government  to  diffuse  itself."  These  events  were  the  foundation  of  the 
United  States  and  the  French  Revolution. 

*"  In  England,  as  we  all  know,  succession  to  the  throne  rests  upon  a  revolution 
— the  result  of  one  of  those  political  expediencies  that  amount  to  a  necessity — 
though  masters  of  reasoned  eloquence,  from  Burke  to  Macaulay,  have  put  upon 
it  a  saving  face  of  continuous  law  and  order.  In  Italy,  Belgium,  Sweden,  Nor- 
way, the  sovereign  wears  a  revolutionary  crown."  Lord  Morley,  Notes  on  Pol- 
itics and  History,  p.  40  (New  York,  1914). 


PRINCES  AND  PARLIAMENTS  9 

ism,  which  reached  the  climax  of  its  sway  over  men's  minds 
in  the  sixties.  The  third  was  socialism,  which  was  on  the 
high  road  to  universal  absorption  of  philosophy  when  the 
period  closed."1 

The  belief  was  especially  strong  that  a  constitution  or 
fundamental  law  was  necessary  for  a  rational  and  work- 
able system  of  government.  The  demand  for  such  a  docu- 
ment was  part  of  the  programme  of  every  liberal  move- 
ment, and  concessions  came  quickly.  Only  Austria, 
Russia,  and  Prussia  resisted  energetically.  After  1848 
the  Hohenzollerns  and  Hapsburgs  yielded.  By  1880  only 
Russia  was  governed  without  a  written  constitution. 

During  the  agitations  and  conflicts  that  attended  the  progress  Doctrine 
to  this  end,  theoretical  debate  developed  new  and  striking  doc-  of  con- 
trines  only  as  to  the  content,  not  as  to  the  desirability  of  the  stitution- 
written  code.  There  was  the  greatest  diversity  among  the  ac-  alism 
tual  constitutions  as  to  the  organization  and  action  of  the 
governments.  In  every  state  there  was  continuous  strife  be- 
tween parties  devoted  to  the  application  of  liberal  and  conserva- 
tive interpretations  respectively  to  the  fundamental  law,  or  to 
the  expansion  of  it  in  the  sense  of  their  interests.  As  to  the  es- 
sential requirements  of  constitutional  government,  theory  was 
practically  unanimous  in  holding  that  there  must  be  some 
guarantee  of  rights  to  the  individual  and  some  reciprocal  check 
and  balance  among  the  legislative,  executive,  and  judicial  powers. 
It  was  further  held  by  all  but  the  ultra-conservatives  that  ra- 
tional government  required  the  participation  of  some  form  of 
deliberative  assembly,  representing  in  some  way  the  body  of  the 
population.  All  these  requirements  had  been  understood  and 
met  in  France  in  1789  and  the  following  years,  but  the  swift 
progress  of  those  years  into  anarchy  remained  a  potent  warning 
to  the  Liberals  of  the  next  generation  and  interposed  a  barrier 
for  decades  against  every  suggestion  of  republicanism.  Hence 
the  chief  problem  of  those  who  speculated  on  the  theory  of  con- 
stitutional government  was  to  find  a  safe  and  useful  niche  in 
the  system  for  the  monarch. 

Thus  until  after  1848  the  theories  of  the  constitutional  state, 
Rechtsstaat,  as  the  Germans  called  it,  were  largely  concerned 
with  the  effort  to  reconcile  the  functions  of  a  representative 
assembly  with  those  of  a  hereditary  monarch,  to  insure  the  lib- 
Running,  Political  Theories  from  Rousseau  to  Spencer,  pp.  247,  250  (New 
York,  1921). 


10 


NEW  CONSTITUTIONS  OF  EUROPE 


Problems 
of  the 
new 
consti- 
tutions 


Slow  growth 
of  republi- 
canism 


erty  of  the  subject  individual  against  the  historical  and  tradi- 
tional omnipotence  of  the  reigning  individual,  and  to  partition 
sovereignty  neatly  between  the  prince  and  the  people  or  banish 
the  troublesome  concept  from  the  ken  of  philosophy.1 

Such  theories,  as  we  shall  see,  have  apparently  not  both- 
ered the  framers  of  the  new  European  constitutions. 
They  have  been  concerned  with  safeguarding  the  rights  of 
individuals  and  minorities;  with  various  expedients  (the 
initiative,  referendum,  proportional  representation)  to  in- 
sure governmental  obedience  to  the  popular  will;  with 
special  arrangements  to  give  their  second  chambers  only 
a  mildly  suspensory  veto,  and  to  provide  for  the  control  of 
diplomacy;  and  with  stipulations  for  extensive  agrarian 
and  industrial  reforms.  This  new  orientation  of  constitu- 
tional problems  has  come  about  for  a  number  of  reasons, 
but  not  the  least  important  is  the  fact  that  the  republican 
principle  was  almost  as  a  matter  of  course  substituted  for 
that  of  constitutional  or  limited  monarchy. 

But  for  the  crash  of  the  war  this  substitution  would 
have  been  greatly  delayed.  Republicanism,  perhaps, 
was  spreading,  but  very  slowly.  Indeed,  a  distinguished 
English  historian2  could  say  in  1911  that  since  1870  the 
cause  of  republicanism  had  made  little  progress  in 
Europe.3  Democracy  had  been  busy  capturing  parlia- 
ments and  securing  extensions  of  the  suffrage;4  but  it  had 
not  been  assaulting  crowns. 

dunning,  op.  cit.,  pp.  252-253. 

2H.  A.  L.  Fisher,  now  President  of  the  Board  of  Education. 

3"The  accepted  formula  of  political  progress  seems,  if  we  are  to  be  guided  by 
the  recent  examples  of  Russia  and  Turkey,  to  be  constitutional  monarchy  rather 
than  republicanism.  The  republican  movement  has  done  its  work.  Its  ideals 
have  been  appropriated  and  used  with  more  or  less  of  completeness  into  the 
political  system  of  Europe,  and  most  of  the  domestic  programme  of  1848  is  now 
fixed  and  embodied  hi  the  institutions  of  the  Continent  which,  save  only  in 
France,  Switzerland,  and  Portugal,  retains  an  explicit  devotion  to  hereditary 
monarchy."  Fisher,  The  Republican  Tradition  in  Europe,  p.  337  (New  York, 
1911). 

4Universal  male  suffrage  was  adopted  in  elections  to  the  Reichstag  in  1871, 
in  Spam  in  1890,  and  in  Austria  in  1907. 


PRINCES  AND  PARLIAMENTS 


11 


France  [said  Mr.  Fisher]  is  still  the  only  great  European  re- 
public, and  the  political  history  of  France  under  her  new  regime 
has  not  been  such  as  to  invite  imitation.  The  position  of  the 
monarchies,  which  seemed  so  precarious  in  1848,  has  been  con- 
siderably, indeed  progressively,  improved  since  the  failure  of 
that  great  and  generous  outburst  of  high  but  ill-calculated  ideals. 
In  part  this  change  has  been  due  to  personal  causes.  The  level 
of  political  intelligence  among  monarchs,  which  was  very  low 
in  the  generation  preceding  1848,  has  certainly  improved;  and 
the  virtues  of  Queen  Victoria  and  King  William  I  of  Prussia 
have  had  some  share  in  dispelling  the  clouds  of  criticism  which 
had  collected  around  the  representatives  of  their  respective 
Houses.  How  thick  those  clouds  were  in  England  no  student 
of  Thackeray's  "Four  Georges"  or  of  the  old  newspapers  is 
likely  to  forget.1 

Mr.  Fisher  considered  that  the  urgency  of  social  and 
economic  questions  had  also  been  of  great  importance  in 
distracting  attention  from  the  monarchical  principle. 
"The  question  of  the  relations  of  capital  and  labor  is  in 
truth,  and  has  been  discovered  to  be,  far  more  important 
than  the  precise  form  assumed  by  the  executive  in  a  demo- 
cratic state.  .  .  .  The  Austrians,  the  Germans,  and 
the  Belgians  content  themselves  with  advancing  proposi- 
tions which  are  thought  to  be  immediately  relevant  to 
the  material  well-being  of  the  lower  classes,  and  are  careful 
to  abstain  from  language  which  might  be  construed  as 
revolutionary  or  seditious.  Republican  feeling  may  be 
widely  diffused,  but  it  has  undergone  an  allopathic  change. 
A  vague,  all-pervading  discontent  with  the  economic  struc- 
ture of  society  has  taken  the  place  of  the  simple  and  direct 
protest  against  the  costliness  of  crowns  and  the  profligacy 
of  courts."2 

Three  other  factors  were  listed  by  Mr.  Fisher  as  contrib- 
uting to  the  decline  of  European  republicanism.  He 
gave  first  place  to  the  success  of  Bismarck's  statesmanship 
in  Germany.  "Finding  Germany  poor,  weak,  divided, 
Bismarck  left  it  the  greatest  military  and  industrial  power 

'Fisher,  op.  cit.,  p.  320. 
*Ibid.,  pp.  S2&-327. 


Due  to 
character  of 
monarchs 


Due  to 

social  and 

economic 

problems 


Due  to 

Bismarck's 

success 


12         NEW  CONSTITUTIONS  OF  EUROPE 

on  the  Continent."  The  principal  instrument  he  made 
use  of  was  "the  force  of  the  Prussian  Monarchy,"  and  Bis- 
marck deliberately  set  himself  "to  affront  all  those  liberal 
principles  which  enlightened  Germans  had  derived  from 
the  political  history  of  France  or  England."  As  a  result 
a  great  gulf  divided  "the  German  mind  of  1888  from  the 
German  mind  forty  years  before,  when  the  Frankfort 
Parliament  was  painfully  and  passionately  elaborating  the 
rights  of  man." 

Due  to  Mr.  Fisher  placed  the  growth  of  imperialism  second 

imperial-  jn  hjs  category  of  the  influences  that  had  rehabilitated  or 
strengthened  monarchy.  The  British  crown  was  necessary 
to  keep  the  Empire  together.1  Whatever  may  be  said 
about  the  political  psychology  of  Dominions  that  are  satis- 
fied with  such  an  imperial  tie,  it  is  undeniably  true  that 
the  principle  of  monarchy  is  an  important  element  in  the 
political  philosophy  of  the  British  Empire. 

The  taste  for  ritual,  for  playthings,  for  make-believe,  is  deeply 
rooted  in  human  nature,  and  monarchy  appeals  to  the  deferen- 
tial instincts  of  the  ordinary  human  being.  Overthrow  the 
monarchy,  replace  the  King  with  an  elective  president,  and 
what  would  become  of  the  loyalty  of  Australia,  New  Zealand, 
or  Canada?  The  British  Colonists  have  no  particular  respect 
for  the  Mother  of  Parliaments,  and  a  very  particular  and  not 
ill-grounded  aversion  to  the  rule  of  Downing  Street;  but  they 
regard  the  Crown  with  feelings  of  simple  and  passionate  venera- 
tion. The  King,  having  been  deprived  of  political  power,  can- 
not harm  them;  and  having  little  ritual  themselves,  they  are 

xOn  this  point  see  H.  Duncan  Hall,  The  British  Commonwealth  of  Nations, 
Chapter  IX  (London,  1920);  Graham  Wallas,  Our  Social  Heritage,  Chapter  X 
(New  Haven,  1921);  and  the  classic  statement  in  Bagehot,  The  English  Consti- 
tution, Chapters  III  and  IV  (2d  Amer.  ed.,  New  York,  1877).  Sidney  and 
Beatrice  Webb,  arguing  for  radical  changes  in  the  present  form  of  government, 
are  nevertheless  willing  to  keep  the  King.  They  say:  "If  we  pass  from  the 
constitutional  theory  of  the  text-books  to  the  facts  as  we  see  them  to-day,  what 
we  have  to  note  is  that  the  particular  function  of  the  British  Monarch — his  duty 
as  king — is  not  the  exercise  of  governmental  power  in  any  of  its  aspects,  but 
something  quite  different,  namely,  the  performance  of  a  whole  series  of  rites 
and  ceremonies,  which  lend  the  charm  of  historic  continuity  to  the  political 
institutions  of  the  British  race,  and  which  go  far,  under  present  conditions,  to 
maintain  the  bond  of  union  between  the  races  and  creeds  of  the  Commonwealth 
of  Nations  that  still  styles  itself  the  British  Empire."  A  Constitution  for  the 
Socialist  Commonwealth  of  Great  Britain,  p.  61  (London,  1920). 


PRINCES  AND  PARLIAMENTS 


13 


the  more  fascinated  by  the  pomp  of  an  ancient  and  dignified 
institution  which  they  have  no  means  of  reproducing  in  their 
several  communities,  but  which  they  regard  as  the  joint  and 
several  possession  of  the  British  race.1 

The  third  factor  that  Mr.  Fisher  enumerated  in  support 
of  monarchy  is  highly  questionable.  "It  is  now,"  he  said 
in  1911,  "a  very  general  belief  that  the  cause  of  European 
peace  is  assisted  by  the  social  and  family  ties  which  sub- 
sist between  the  monarchs  of  Europe."  However  widely 
this  general  belief  may  have  prevailed  a  decade  ago,  it  is 
certainly  no  longer  held.  Indeed  it  is  arguable  that  the 
monarchical  principle  as  it  operated  in  foreign  policy  was 
in  no  small  part  responsible  for  the  cataclysm  that  resulted 
in  its  almost  complete  extinction.2 

Mr.  Fisher  was  a  greater  historian  than  prophet.  His 
vision  of  the  ending  of  the  republican  movement  and  of 
peace  resting  upon  dynastic  bonds  proved  to  be  a  delu- 
sion.3 But  his  analysis  of  the  forces  working  to  preserve 
monarchy  is  sufficiently  acute  to  warrant  the  extended 

Wisher,  op.  cit.,  p.  329.  Sir  Henry  Maine,  in  his  criticism  of  popular  institu- 
tions, admitted  that  the  United  States  "disproved  the  once  universal  assump- 
tions that  no  Republic  could  govern  a  large  territory,  and  that  no  strictly  Re- 
publican government  could  be  stable."  Popular  Government,  p.  12.  Mr. 
Fisher  also  says  that  the  success  of  the  United  States  proves  that  an  elective 
President  may  govern  a  continent  that  is  geographically  continuous;  but  it  does 
not  prove  that  the  republican  system  is  adapted  for  disjoined  communities. 
He  suggests  also  that  the  monarchy  in  the  Iberian  Peninsula  has  been  perma- 
nently weakened  by  the  loss  of  the  American  colonies  of  Spain  and  Portugal. 
But  it  may  be  pointed  out  that  this  sentimental  factor,  while  it  may  have 
strengthened  the  monarchy  in  England,  had  little  or  no  effect  on  the  continent 
of  Europe. 

2On  this  point,  see  Chapter  VII.  At  the  time  of  the  French  Revolution  it 
was  a  widely  held  belief  that  Europe  would  become  a  federation  of  republics 
and  that  this  would  ensure  peace.  The  theory,  of  course,  went  back  to  Kant's 
little  treatise  On  Perpetual  Peace  (1795).  According  to  Kant,  four  conditions 
were  essential:  "(1)  monarchs  being  largely  responsible  for  war,  every  state 
must  have  popular  government;  (2)  international  law  must  be  backed  by  a 
federation  of  free  states;  (3)  men  must  be  permitted  to  visit  everywhere,  but,  as 
if  to  obviate  one  of  the  subsequent  evils  of  the  industrial  revolution,  ownership 
must  not  be  allowed  in  foreign  lands;  and  (4)  no  state  may  violently  interfere 
with  the  constitution  and  internal  administration  of  another."  C.  J.  H.  Hayes, 
"The  Historical  Background  of  the  League  of  Nations,"  in  Duggan,  Ed.,  The 
League  of  Nations:  The  Principle  and  the  Practice,  p.  32  (Boston,  1919). 

'See  his  own  essay  on  Political  Prophecies  (Oxford,  1919)  and  Willoughby  and 
Rogers.  An  Introduction  to  the  Problem  of  Government,  p.  6. 


Monarchs 
did  not 
preserve 
peace 


14 


NEW  CONSTITUTIONS  OF  EUROPE 


Mr.  Wells 
on  the  use 
of  monarchy 


Popular 
control 
over 
monarchs 


quotations  that  have  been  made.  To  the  factors  that  he 
mentions,  certain  other  not  unimportant  influences  may  be 
added.  As  Mr.  Wells  has  put  it: 

In  support  of  the  dynastic  system  was  the  fact  that  it  did 
exist  as  the  system  in  possession,  and  all  prosperous  and  intelli- 
gent people  are  chary  of  disturbing  existing  things.  Life  is  full 
of  vestigial  structures,  and  it  is  a  long  way  to  logical  perfection. 
Let  us  keep  on,  they  would  argue,  with  what  we  have.  And 
another  idea  which,  rightly  or  wrongly,  made  men  patient  with 
the  emperors  and  kings  was  an  exaggerated  idea  of  the  civil 
insecurity  of  republican  institutions.1 

Moreover,  for  the  most  part  kings  were  behaving  them- 
selves; and  although  conflicts  with  legislatures  were  fre- 
quent,2 there  were  popular  as  well  as  royal  victories. 
Despite  some  doubts  as  to  whether  the  royal  veto  power 
had  really  fallen  into  desuetude3  and  some  alarms  as  to  the 
share  of  Edward  VII  in  foreign  policy,4  the  English  King 
was,  as  Sir  Henry  Maine  said,  a  monarch  who  reigned  but 
did  not  govern.  In  spite  of  the  frankly  undemocratic 
character  of  the  German  constitutions  and  extreme  lan- 
guage from  the  Emperor  as  to  his  "divine  right,"  there 
were  a  sufficient  number  of  incidents  like  that  of  the 
Daily  Telegraph  interview  to  create  an  impression  of 
royal  reasonableness  and  to  confine  agitation  for  the  re- 
publican principle  to  the  programs  of  the  smaller,  radi- 
ical  parties.  This  moderation  in  the  use  of  the  royal 
prerogative  and  the  occasional  victories  of  representative 
bodies  were  appreciable  factors  in  upholding  the  monarchi- 
cal tradition.  When  the  Hohenzollerns  and  Hapsburgs 
were  finally  defeated  and  their  prestige  was  utterly  de- 

JH.  G.  Wells,  "The  Future  of  Monarchy,"  The  New  Republic,  May  19,  1917. 

*"  Prince  and  representative  body  were  in  almost  every  state  of  Central 
Europe  in  strife  as  to  the  scope  of  their  respective  powers;  neither  would  con- 
cede the  right  of  the  other  to  partition  the  disputed  field;  an  authority  with 
competence  to  determine  competence  was  inevitably  suggested."  Dunning, 
Political  Theories  from  Rousseau  to  Spencer,  pp.  289-290. 

*See  Wallas,  Our  Social  Heritage,  Chapter  X. 
4See  below,  Chapter  VII. 


PRINCES  AND  PARLIAMENTS 


15 


stroyed,  it  would  have  been  understandable,  perhaps,  if 
their  peoples  had  in  desperation  turned  wholly  against 
monarchy  as  such;  but  even  hi  this  dire  circumstance  the 
really  effective  stimulus  toward  republicanism  appears  to 
have  come  from  the  outside.  The  primary  cause  of  such 
a  complete  change  was  probably  the  hope  that  thereby 
better  peace  terms  might  be  secured.  In  states  like 
Esthonia  and  Czechoslovakia,  released  from  control  by 
oppressive  monarchies,  there  was  a  good  deal  of  demo- 
cratic fervor;  but  this  was  not  the  case  with  the  Cen- 
tral Powers — their  constitutions  to  the  contrary  notwith- 
standing. 

Two  Emperor-Kings,  five  Kings,  five  Grand  Dukes,  six 
Dukes,  and  seven  Princes — all  reigning  sovereigns  under 
the  old  regime  in  Germany  and  Austria-Hungary — lost 
their  royal  jobs  as  a  result  of  the  World  War.1  Most  of  the 
abdications,  however,  were  peaceful,  even  friendly.  In 
all  the  countries  affected  strong  monarchical  parties  exist; 
and  it  is  entirely  possible  that,  as  in  Greece,  thrones  will 
be  occupied  again,  with  no  great  outcry  from  powerful 
objecting  groups.  As  a  recent  writer  says: 

To  interpret  these  political  developments  as  the  triumph  of 
the  Peoples'  Will  in  conflict  with  the  monarchic,  or  the  militar- 
ist, or  any  other  reactionary  principle,  would  be  misleading. 
.  .  .  The  issue  of  Republicanism  versus  Monarchy  in  the 
small  States  had  not  in  fact  been  on  the  tapis  of  practical  politics 
in  Germany  any  time  in  the  last  fifty  years.  In  many  or  most 
of  them  it  would  probably  never  have  been  raised  after  the 
collapse,  had  not  the  Allies,  or  rather  President  Wilson — for, 
so  far  as  is  known,  the  Allies  made  no  pronouncement  on  the 
subject — indicated  their  desire  for  the  establishment  of  re- 

*In  Central  Europe  one  German  sovereign  remains — Prince  John  II  of  Liechten- 
stein. "The  Principality  is  mostly  the  private  property  of  the  Prince,  who,  as  he 
draws  almost  all  of  the  revenue,  also  defrays  almost  all  of  the  expenditure.  The 
victory  of  Republicanism  would  accordingly  imply  the  introduction  of  taxes, 
from  which  this  fortunate  state  is  at  present  entirely  immune;  and  also,  if  it 
were  to  join  Germany  or  Switzerland,  some  form  of  military  service.  In  these 
circumstances  competent  observers  incline  to  the  view  that  Prince  John  can 
continue  to  count  on  the  dutiful  allegiance  of  his  subjects."  "Monarchism  in 
Central  Europe,"  Quarterly  Review,  January,  1922. 


Monarchical 
sentiment 
in  Central 
Europe 


Friendly 
abdications 


Wilson's 
influence 
against 
monarchy 


16 


NEW  CONSTITUTIONS  OF  EUROPE 


Faith 
in  the 
representa- 
tive 
principle 


Radical 
attacks  on 
parliamen- 
tary 
principle 


publican  institutions  in  Germany  as  a  preliminary  to  the  nego- 
tiation of  peace.1 

One  further  point  of  general  interest  remains  to  be 
noted.  Despite  the  use  of  direct  government  (initiative, 
referendum,  etc.),  the  political  children  of  the  Peace 
Treaty  are  putting  their  faith  in  legislatures  and  the 
representative  principle.  They  are  doing  this  at  a  time 
when,  in  England  and  France,  as  well  as  in  the  United 
States,  considerable  discontent  with  parliamentary  gov- 
ernment is  being  voiced.  The  attacks  come  from  both 
the  Left  and  the  Right.  The  radicals  stress  the  bank- 
ruptcy of  political  methods  and  the  impossibility  of  se- 
curing the  kind  of  economic  distribution  that  they  desire 
through  the  existing  political  state.  Some  of  them  urge 
direct  action — that  is,  the  use  of  their  economic  power  for 
political  purposes.  In  the  words  of  one  of  their  chief 
spokesmen : 

Arguments  against  direct  action  drawn  from  the  fact  of 
political  democracy  are  no  arguments  at  all,  for  they  obscure 
the  point  that  there  can  be  no  real  "  government  of  the  people, 
by  the  people,  for  the  people,"  in  what  is  called  politics  unless 
that  government  finds  full  expression  in  the  economic  life  of  a 
community.  The  road  to  freedom  lies  not  through  the  polling 
booth,  but  through  the  workshop  gates.  .  .  .  Just  in  so  far 
as  the  workers  rely  on  the  vote  as  the  primary  weapon,  they 
will  fail  to  win  freedom;  just  in  so  far  as  they  recognize  that  the 
value  of  the  vote  is  in  proportion  to  their  industrial  and  economic 
strength  they  will  succeed.2 

The  direct  actionists  have  certainly  not  intended  to 
give  aid  and  comfort  to  the  parliamentary  regime.  Even 
so  it  is  probable  that  the  extremeness  of  their  propaganda 
has  alienated  to  the  support  of  parliamentary  government 
more  persons  than  have  been  converted  to  a  belief  in  the 
wisdom  of  its  destruction.  But  not  all  of  the  radical 
critics  of  parliamentary  government  are  direct  actionists. 

1"Monarchism  in  Central  Europe,"  Quarterly  Review,  January,  1922. 
'William  Mellor,  Direct  Action,  pp.  51-52  (London,  1920). 


PRINCES  AND  PARLIAMENTS 


17 


A  number  of  those1  who  desire  extensive  social  changes 
put  their  faith  in  political  methods.  They  seek  reform 
by  the  process  of  capturing  the  parliament  itself.  More- 
over, there  are  many  conservative  critics2  who,  while 
refusing  to  accept  the  glibly  flung  accusation  that  parlia- 
mentary democracy  is  bankrupt,  have  nevertheless  grave 
doubts  whether  the  representative  principle  will  continue 
to  be  adhered  to  without  extensive  modifications.  These 
critics,  instead  of  dropping  the  ploughshare  of  reform  and 
retiring  to  speculate  on  the  woes  of  the  existing  order  and 
the  beneficences  of  some  one  or  other  of  numerous  impend- 
ing millenniums,  are  concerned  with  analyzing  the  causes 
of  the  trouble  and  with  suggesting  possibilities  of  improve- 
ment. And  even  if  they  are  not  able  to  keep  the  business 
of  representative  government,  as  we  now  know  it,  out  of 
the  bankruptcy  court,  they  hope  to  enable  it  to  liquidate 
some  of  its  liabilities  and  to  "carry  on  at  the  old  stand" 
upon  a  somewhat  different  basis. 

In  his  Modern  Democracies  Lord  Bryce  discounted  the 
general  belief  in  the  decline  of  legislative  authority.  He 
cited,  nevertheless,  "some  general  causes"  that  "have 
been  tending  to  reduce  the  prestige  and  authority  of  legis- 
lative bodies."  He  suggested  that  "the  spirit  of  demo- 
cratic equality  has  made  the  masses  of  the  people  less  def- 
erential to  the  class  whence  legislators  used  to  be  drawn, 
and  the  legislatures  themselves  are  to-day  filled  from  all 
classes  except  the  very  poorest."  This,  as  he  points  out, 
is  in  some  respects  a  gain,  for  the  popular  wishes  can  be 

lE.g.,  Sidney  and  Beatrice  Webb,  A  Constitution  for  the  Socialist  Common- 
wealth of  Great  Britain  (London,  1920);  J.  R.  MacDonald,  Parliament  and  Revo- 
lution (London,  1919). 

*To  cite  a  Liberal  critic:  "It  is  a  fact  of  universal  admission  that  the  prestige 
of  the  British  Parliament  has  not  been  at  so  low  an  ebb  in  living  memory  as  it  is 
to-day.  We  should  have,  I  think,  to  go  back  to  the  time  when  George  III, 
in  his  pursuit  of  personal  government,  packed  the  House  of  Commons  with  his 
creatures,  to  parallel  the  disrepute  into  which  the  present  Parliament  has  fallen. 
The  House  of  Commons  has  lost  its  authority  over  the  public  mind  and  its  in- 
fluence upon  events."  A.  G.  Gardiner,  "The  Twilight  of  Parliament,"  The 
Atlantic  Monthly,  August,  1921. 


Some  who 
oppose 
direct 
action 


Criticism  by 
conserva- 
tives also 


Lord  Bryce 
on  decline 
of  repre- 
sentative 
government 


18        NEW  CONSTITUTIONS  OF  EUROPE 

better  expressed;  but  "members  of  legislatures  stand 
more  than  heretofore  on  the  same  intellectual  level  as  their 
constituents.  .  .  .  The  defect  perpetuates  itself,  be- 
cause men  are  apt  to  live  up  to  no  higher  standard  than 
that  which  they  find.  The  less  the  country  respects  them, 
the  less  they  respect  themselves.  If  politicians  are  as- 
sumed to  move  on  a  low  plane,  on  it  they  will  continue 
to  move  till  some  great  events  recall  the  country  and  them 
to  the  ideals  which  inspired  their  predecessors."1 

Effect  on  Lord  Bryce  thought  that  "the  disappearance  of  this  sense 

usiness  °^  soc*al   responsibility"  is  important  because  it   "has 

affected  the  conduct  of  business.  Every  rule  of  procedure, 
every  technicality  is  now  insisted  upon  and  worked  for  all 
it  is  worth."  This  stiffening  or  hardening  of  the  modes 
of  carrying  on  public  business  has  made  parliamentary 

JMr.  Hilaire  Belloc  has  recently  written  a  book  that  seeks  to  establish  the 
following  thesis : 

"The  House  of  Commons,  though  containing  a  representative  element,  was, 
and  is,  essentially  not  a  representative  body,  but  an  Oligarchy;  that  is,  a  small 
body  of  men  segregated  from  the  mass  of  the  citizens  and  renewing  itself.  But 
no  Oligarchy  works  (that  is,  can  be  morally  accepted  or  exercise  authority) 
unless  it  be  an  Aristocracy.  Mere  Oligarchy,  the  mere  rule  of  a  clique  without 
the  excuse  of  an  imputed  excellence,  will  never  be  tolerated  among  men.  The 
whole  meaning  of  Aristocracy  is  the  provision  of  a  sort  of  worship  addressed  to 
the  few  that  govern.  Therefore  the  House  of  Commons  was  vigorous  and 
healthy  in  its  function  only  so  long  as  it  was  the  Aristocratic  organ  of  an  Aristo- 
cratic State. 

"For  the  definition  of  'The  Aristocracy'  in  an  Aristocratic  State  is,  not  a 
body  recruited  by  birth  or  even  from  wealth,  not  a  caste  (though  it  may  be  a 
caste),  least  of  all  a  plutocracy,  but  essentially  an  Oligarchy  enjoying  a  Peculiar 
Respect  from  its  fellow  citizens.  Upon  the  failure  of  the  Aristocratic  quality  in 
the  House  of  Commons,  upon  the  decline  of  that  body  into  a  clique  no  longer 
respected,  its  moral  authority  disappeared;  and  with  that  moral  authority  dis- 
appeared its  power  of  government."  Meanwhile  the  functions  of  the  state 
were  rapidly  increasing  and  a  double  evil  existed:  "the  rapid  accretion  of  ma- 
terial power  in  something  which,  as  rapidly,  was  growing  morally  unfitted  to 
exercise  that  power."  Mr.  Be'.loc  thinks  that  "if  some  form  of  Monarchy  does 
not  succeed  to  the  lost  inheritance  of  the  House  of  Commons,  the  State  will  lose 
its  greatness."  The  House  of  Commons  and  Monarchy,  pp.  13-14  (London, 
1920). 

There  is  a  half  truth  in  this  analysis;  but  the  case  is  vastly  overstated, 
and  Lord  Bryce's  version  is  probably  much  more  accurate.  Mr.  Belloc  sug- 
gests the  rule  cf  a  single  man — a  Monarch  (not  necessarily  hereditary) ;  but  one 
of  the  causes  of  the  decline  of  the  English  House  of  Commons  is  Mr.  Lloyd 
George's  dictatorship,  and  to  argue  for  a  monarchical  restoration  is  almost  gro- 
tesque. Mr.  Ernest  Barker,  commenting  on  Mr.  Belloc's  book,  thinks  that 
Parliament  will  continue  as  it  is,  with  a  modified  upper  chamber,  which  perhaps 
will  represent  interests;  that  there  will  be  a  good  deal  of  devolution;  that  the 


PRINCES  AND  PARLIAMENTS 


19 


deliberations  seem  more  and  more  of  a  game,  and  less  and 
less  a  consultation  by  the  leaders  of  the  nation  on  matters 
of  public  welfare.  "A  like  tendency  is  seen  in  the  stricter 
party  discipline  enforced  in  the  British  self-governing 
Dominions.  As  party  organizations  are  stronger,  the  dis- 
cretion of  representatives  is  narrowed:  they  must  vote 
with  their  leaders.  The  member  who  speaks  as  he  thinks 
is  growing  rare  in  English-speaking  countries.  Whips 
called  him  a  self-seeker,  or  a  crank,  yet  his  criticisms  had 
their  value."  All  this  is  true  enough;  but  it  would  seem 
to  be  a  symptom  rather  than  the  disease  itself.  And  so  it 
is  with  the  payment  of  members,  which,  to  Lord  Bryce's 
mind,  has  lowered  their  status  and  fettered  their  freedom. 
Payment,  however,  was  inevitable  in  the  United  States 
where  the  distances  are  so  great  and  residence  in  Washing- 
ton requires  that  business  and  home  be  left  for  the  con- 
gressional session.  It  was  inevitable,  also,  in  Europe, 
for  it  was  natural  enough  that  enfranchised  wage  earners 
should  often  wish  to  exercise  the  right  of  electing  repre- 
sentatives from  their  own  economic  and  social  class.1 
Moreover,  if,  under  cabinet  government,  the  payment  of 
members  has  made  the  less  opulent  sometimes  reluctant 
to  risk  their  seats  and  their  incomes  by  voting  against  the 
Government,  such  an  evil  is  doubtless  less  than  that  of 
making  it  impossible  for  members  of  the  wage-earning 
class  to  serve  in  Parliament,  or  of  compelling  them  to  rely 


restoration  of  the  party  system  will  mean  government  by  discussion,  and  that 
"there  will  be,  organized  and  unorganized  (probably  organized),  a  sort  of  fifth 
estate."  "Besides  the  Press  (freed,  one  hopes,  from  the  incubus  of  proprietors' 
control)  there  may  well  be  an  industrial  or  labour  council,  not  as  a  formal  part 
of  the  legal  constitution,  but  informally  suggestive,  consultative,  advisory  to 
Parliament  and  the  Cabinet. 

"The  'deferential'  spirit  being  dead,  we  are  likely  to  have  the  electorate, 
when  it  has  recovered  from  its  present  temporary  paralysis,  asserting  itself  more 
vigorously  than  in  the  past.  It  is  possible  that  we  may  come  to  experiment 
with  the  referendum;  it  is  possible,  on  the  other  hand,  that  a  purified  fourth 
estate,  and  a  new  fifth  estate,  may  provide  sufficient  channels."  "The  Origin 
and  Future  of  Parliament,"  Edinburgh  Review,  July,  1921. 

lSee  the  provisions  in  the  constitutions  below  (e.g.,  Prussia  and  Belgium) 
requiring  the  acceptance  of  government  allowances. 


Effect  of 

paying 

legislators 


Other 
organiza- 
tions 
compete 
with  legisla- 
tures 


20         NEW  CONSTITUTIONS  OF  EUROPE 

upon  payments  made  by  the  industrial  organizations  from 
which  they  come. 

Lord  Bryce  called  attention  also  to  the  fact  that  "other 
organizations  occupying  themselves  with  public  questions 
and  influencing  large  sections  of  opinion,  have  arisen  to 
compete  with  legislature  for  the  attention  of  the  nation."1 
Party  conventions  or  conferences  are  not  very  important; 
but  "the  meetings  of  industrial  sections  and  of  the  new 
class  parties,  such  as  the  Trades  Union  Congress  in  Eng- 
land and  the  Congress  of  the  Peasant  Party  in  Switzerland, 
the  Socialist  Congresses  in  France,  and  the  Labor  Union 
Congresses  or  assemblies  representing  the  farmers  or 
miners  in  the  United  States,  the  gatherings  of  farmers  in 
Canada,  and  the  still  more  powerful  meetings  of  Labor 
organizations  in  Australia — all  these  are  important,  for 
they  represent  a  large  potential  vote  and  their  deliverances 
serve  as  a  barometer  showing  the  rise  or  fall  of  opinion  on 


JOne  interesting  resort  to  extra-governmental  agencies  was  Mr.  Lloyd  George's 
experiment  with  a  committee  of  business  men  (under  the  chairmanship  of  Sir 
Eric  Geddes,  then  a  member  of  the  House  of  Commons  but  not  of  the  Cabinet) 
to  advise  on  questions  of  finance  and  to  report  to  the  Cabinet.  The  Committee 
was  dubbed  the  "super-axe"  committee  and  stringent  economy  was  its  object. 
The  Committee  was  apparently  responsible  to  no  one  except  the  Prime  Minister 
and,  sitting  hi  private,  was  put  in  the  possession  of  facts  and  information  of  wider 
scope  than  the  Estimates  Committee  of  the  House  of  Commons  was  allowed  to 
have.  The  Prime  Minister  thus  had  two  financial  advisers — the  Chancellor  of 
the  Exchequer  and  the  Geddes  Committee.  A  fact  of  prime  importance  was 
that  the  proposals_of  the  latter  could  be  made  without  the  Cabinet's  being  respon- 
sible for  them. 

"However  worthy  may  have  been  the  motives  of  the  Government  in  the  in- 
stitution of  a  Committee  of  'business  men'  to  advise  the  Cabinet  on  the  cost  of 
contemplated  policy,  there  can  be  no  doubt  that  the  existence  of  this  body  will 
be  a  grave  innovation  on  Constitutional  usage  and  in  derogation  of  the  author- 
ity of  Parliament.  This  Committee  will  be  the  collaborators  with  the  Cabinet 
on  public  policy  and  an  authority  overriding  or  being  overridden  by  the  Cabinet, 
with  the  result  that  Parliament,  within  the  ambit  of  its  privileges,  will  have  the 
invidious  task  of  discriminating  between  the  policy  of  the  Cabinet  and  the 
Committee.  .  .  . 

"So  long  as  the  vote  of  the  House  of  Commons  on  proposals  of  the  Govern- 
ment involves  the  fate  of  a  Ministry  and  the  hostile  speech  of  a  member  may 
ruin  his  political  career,  so  long  will  Government  and  the  country  lack  the 
effective  deliberative  services  of  Parliament,  where  growing  impotence  keeps 
pace  with  the  steady  advance  of  bureaucracy."  Judge  Atherley-Jones,  Lon- 
don Times  (weekly  edition),  August  12,  1921. 

The  Committee  reported  in  February,  1922,  and  some  of  its  proposals  were 
accepted  and  some  rejected  by  the  Government. 


PRINCES  AND  PARLIAMENTS  21 

industrial  issues.  Those  who  lead  them  may  win  and 
wield  a  power  equal  to  that  of  all  but  the  most  outstanding 
Parliamentary  chiefs."1 

To  what  is  probably  one  of  the  most  important  consid-     Effect  of 
erations  bearing  upon  the  impairment  of  parliamentary     influence  of 
prestige,  Lord  Bryce  gave  but  scant  notice.     He  men-          press 
tioned  the  encroachment  of  the  newspaper  press  "on  the 
province  of  the  Parliamentary  orator, "  and  added:  "Only 
the  strongest  statesmen  can  command  an  audience  over 
the  whole  country,  such  as  that  which  a  widely  read  news- 
paper addresses  every  day.     The  average  legislator  fears 
the  newspaper,  but  the  newspaper  does  not  fear  the  legis- 
lator, and  the  citizen  who  perceives  this  draws  his  own 
conclusions." 

But  surely  the  question  is  much  more  important  than     Lord 
this.     In  the  opinion  of  certain  critics  of  the  House  of     Esher's 
Commons,  the  press  has  been  a  most  vital  factor  in  the 
decline  of  parliamentary  authority.2     One  eminent  writer 
has  even  suggested  that  popular  representation — that  is, 
the  delegation  of  legislative  power — had  for  its  basis  the 
illiteracy  of  the  people  and  the  absence  of  sources  of  politi- 

'Bryce,  Modern  Democracies,  Vol.  II.  p.  340.  "The  issues  of  policy  which  now 
occupy  legislatures  are  more  complex  and  difficult  than  those  of  half  a  century 
ago.  The  strife  of  classes  and  formation  of  class  parties  were  not  foreseen,  nor 
the  vast  scale  on  which  economic  problems  would  present  themselves,  nor  the 
constant  additions  to  the  functions  of  governments,  nor  that  immense  increase  of 
wealth  which  has  in  some  countries  exposed  legislators  to  temptations  more 
severe  than  any  that  had  assailed  their  predecessors.  The  work  to  be  done  then 
was  largely  a  work  of  destruction.  Old  abuses  had  to  be  swept  away,  old 
shackles  struck  off,  and  for  effecting  this  a  few  general  principles  were  thought 
to  suffice.  The  next  generation  was  confronted  by  constructive  work,  a  remod- 
elling of  old  institutions  in  the  effort  to  satisfy  calls  for  social  reorganization,  a 
difficult  task  which  needed  more  hard  thinking  and  creative  power  than  were 
forthcoming.  Thus  while  the  demands  on  representative  assemblies  were  heav- 
ier the  average  standard  of  talent  and  character  in  their  members  did  not  rise. 
Never  was  it  clearer  than  it  is  to-day  that  Nature  shows  no  disposition  to  pro- 
duce men  with  a  greatness  proportioned  to  the  scale  of  the  problems  they  have 
to  solve. 

"Taking  all  these  causes  into  account,  whatever  decline  is  visible  in  the 
quality  and  the  influence  of  legislatures  becomes  explicable  without  the  assump- 
tion that  the  character  of  free  peoples  has  degenerated  under  democracy." 
Ibid.,  Vol.  II,  pp.  341-342. 

*See  the  references  in  Willoughby  and  Rogers,  An  Introduction  to  the  Problem 
of  Government,  pp.  141,  219,  313. 


22         NEW  CONSTITUTIONS  OF  EUROPE 

cal  information.  "Newspapers  and  the  capacity  of  the 
constituent  masses  to  read  them,"  he  says,  "have  sapped 
the  foundations  of  representative  government,  as  it  has 
been  understood  in  England,  and  'public  opinion'  seems 
about  to  require  more  'direct  working'  than  the  parlia- 
mentary system  has  hitherto  afforded,  or  is  likely  to 
afford."1  This,  it  should  be  noted,  was  written  before  the 
war  and  before  the  convulsions  of  the  conflict  had  any 
effect  on  parliamentary  institutions  and  cabinet  control — 
before,  indeed,  the  country  had  witnessed  Mr.  Lloyd 
George's  political  legerdemain  and  his  peculiar  relations 
with  the  press.2 

The  case  has  been  more  recently  stated  by  another 
acute  English  critic: 

Mr.  Side-  It  may  be  that  the  representative  system  was  only  a  tempo- 

botham's           rary  expedient  adapted  to  small  electorates  and  an  illiterate  age, 

view  and  that  the  printing  press  will  transfer  our  politics  back  to 

the  stage  at  which  the  fortunes  of  nations  were  determined 

by  a  forum  speech.     The  printing  press,  in  fact,  does  enable 

a  prominent  politician  to   gather   forty  million   people  in  a 

forum  and  address  them  as  though  they  were  a  crowd  of  a  few 

JLord  Esher,  The  Influence  of  King  Edward  and  Other  Essays,  p.  103  (London, 
1915). 

"The  rapid  development  in  the  means  of  communication;  the  marvelous 
organization  for  the  supply  of  information,  if  not  of  intelligence;  the  extension 
of  the  parliamentary  franchise,  and  the  diffusion  of  education;  the  increasing 
subordination  of  politics  to  economics;  the  substitution  of  vocation  for  locality 
as  the  basis  of  association; — all  these  have  tended  towards  the  weakening  of  the 
representative  principle  and  to  the  institution  of  methods  appropriate  to  a  more 
direct  form  of  democracy.  The  press,  the  platform,  the  trade  union,  and  the 
caucus,  have  unquestionably  done  something  to  decentralize  political  activity 
and  to  transfer  discussion  from  Westminster  to  the  constituencies,  be  they  local  or 
vocational."  Marriott,  "The  Party  System,"  Edinburgh  Review,  October,  1921. 

2"A  press  man  was  much  more  important  to  him  [Mr.  Lloyd  George]  than  a 
Parliamentary  colleague  or  a  prince  of  the  blood.  He  might  forget  to  reply  to 
an  archbishop,  but  he  would  never  forget  to  reply  to  a  journalist.  His  acquaint- 
ance among  the  craft  was  more  various  and  peculiar  than  that  of  any  politician 
of  this  day  or  any  other  day.  There  was  no  newspaper  man  so  poor  that  he 
would  not  do  him  reverence  and  entertain  him  to  breakfast.  While  his  former 
colleague,  Mr.  Asquith,  studiously  ignored  the  press  and  would  no  more  have 
thought  of  bargaining  with  Northcliffe  and  Beaverbrook  for  their  support  than 
of  asking  his  butler  to  write  his  speeches,  Mr.  George  lived  in  the  press  world, 
knew  every  leading  journalist's  vulnerable  point,  humored  his  vanity,  and  gave 
him  a  knighthood  or  a  peerage  as  readily  as  his  breakfast."  A.  G.  Gardiner, 
"The  Twilight  of  Parliament,"  The  Atlantic  Monthly,  August,  1921. 


PRINCES  AND  PARLIAMENTS 


hundreds.    .    .    .    This  is  the  real  menace  to  the  representative 
system,  and  to  the  authority  of  Parliament.1 

It  is  a  menace  which  might  be  somewhat  lessened  in 
England  by  allowing  the  House  of  Commons  to  express 
its  opinion  without  the  constant  threat  of  dissolution  if 
the  opinion  should  be  adverse  to  that  of  the  Cabinet.  A 
certain  number  of  legislative  proposals  could  be  made 
party  measures — the  Government  to  stand  or  fall  on  them; 
and  on  all  other  questions  (including  expenditure)  the 
House  might  be  permitted  to  express  an  independent 
judgment.  Or,  it  has  been  suggested  that  dissolutions 
during  the  early  part  of  a  parliament  should  not  take 
place  at  the  will  of  the  Government  alone,  but  only  if 
approved,  say,  by  three-fifths  of  the  House  of  Commons. 
Some  such  adjustment  may  possibly  be  made.  Certainly 
the  probable  advantages  seem  sufficient  to  warrant  ex- 
perimentation.2 Concessions  of  this  kind,  however,  will 
not  be  wrung  from  the  Cabinet  without  a  stubborn  fight. 
The  Government  will  not  willingly  relinquish  the  domi- 
nance that  it  now  has  over  the  House  of  Commons. 

These  considerations — the  Press,  the  decline  of  parlia- 
mentary ability,  the  extensions  of  the  suffrage,  the  in- 
crease of  executive  power,  direct  action  by  labor,  and 
extra-constitutional  organizations — will  all  have  great  in- 
fluence upon  the  workings  of  constitutional  government  in 

^Herbert  Sidebotham,  Political  Profiles,  pp.  251,  252  (Boston,  1921).  Mr. 
Sidebotham  says  that  the  contention  is  "between  Parliamentary  authority 
and  the  representative  system  in  politics  on  the  one  hand,  and  what  may  be 
called  the  principle  of  direct  action  in  government.  The  direct  action  party  in 
Labor  politics,  which  seeks  to  accomplish  its  ends  by  economic  pressure  without 
reference  to  the  slower  methods  of  Parliamentary  persuasion,  everyone  knows. 
But  there  has  grown  up  in  Government  quarters  a  direct  action  party  which 
likes  to  appeal  to  the  sovereign  people  direct,  through  the  Press  now  that  the 
platform  is  losing  its  power,  and  over  the  heads  of  its  constitutional  representa- 
tives in  the  Commons.  .  .  .  Between  the  vast  ochlocracy  of  the  electorate 
which  is  easiest  reached  through  the  megaphone  of  the  newspapers,  and  the 
Triumvirate  of  the  Inner  Cabinet,  the  representative  system  is  in  danger  of  being 
crushed  out." 

2Note  the  methods  of  dissolution  that  have  been  provided  in  some  of  the  new 
constitutions. 


Possible 
improve- 
ments in 
England 


Similar 
difficulties 
in  the  new 
states 


24         NEW  CONSTITUTIONS  OF  EUROPE 

the  new  states  of  Europe.  These  new  states  have  bor- 
rowed from  England,  France,  and  the  United  States 
political  machinery  which  now  seems  to  be  functioning 
with  questionable  efficiency.1  These  factors  would  cause 
difficulty  even  if  the  peoples  were  accustomed  to  self- 
government,  which  they  are  not.  Moreover,  although  the 
line  that  could  formerly  be  drawn  between  economics  and 
politics  is  rapidly  becoming  blurred  and  indistinct,  never- 
theless, to  the  extent  that  the  distinction  obtains,  emphasis 
in  the  new  states  must  of  necessity  be  laid  upon  eco- 
nomics rather  than  politics.  This  will  be  true  to  a  far 
greater  extent  than  in  England  or  France,  and  even  in 
those  countries  there  are  the  beginnings  of  a  new  orien- 
tation that  cannot  fail  to  influence  representative  govern- 
ment as  we  hitherto  have  known  it. 

New  The  nineteenth  century  was  mainly  occupied  in  the  conquest 

emphasis  on  of  political  equality.     The  right  to  the  franchise,  the  right  to 

economic  combine,  the  right  to  education,  the  right  to  a  full  religious 

problems  freedom — it  was  upon  the  attainment  of  these  that  the  minds  of 

1Discussion  of  the  weaknesses  of,  and  methods  of  strengthening,  parliamentary 
institutions  is  not  confined  to  England.  Thus,  an  anonymous  French  critic 
observes  a  number  of  faults  in  the  French  system.  The  first  is  that  Parliament 
delegates  its  power,  but  is  either  unwilling  or  unable  to  control  its  use.  The 
ministers  have  not  the  time  to  exercise  it  themselves,  so  they  delegate  it  in  turn 
to  their  subordinates.  The  responsibility,  however,  is  Parliament's,  for  the 
ministers  remain  in  office  on  its  sufferance.  The  writer  proposes  a  commission 
composed  partly  of  Senators  and  Deputies  and  partly  of  non-officials  which 
would  view  the  administration  as  a  whole,  unify  policies,  attempt  to  insure 
efficiency,  and  strive  for  continuity.  The  second  count  in  the  indictment  is 
that  every  minister  is  above  all  a  politician  rather  than  an  administrator  or  a 
man  of  action.  This  of  course  raises  the  whole  question  of  competence  in  poli- 
tics. Here  also  the  writer  suggests  another  wheel  in  the  machine — a  council 
of  administration  in  each  department,  and  the  association  of  a  well-equipped 
under-secretary  with  the  political  head. 

The  third  weakness  is  that  the  chambers  do  their  work  by  themselves  and 
never  call  in  experts  to  help  them.  Members  are  poorly  prepared  for  parlia- 
mentary tasks  and  yet  it  would  cost  them  dearly  to  admit  this  to  constituencies 
blessed  by  universal  suffrage.  Parliament  must  call  on  specialists  in  legislative 
drafting,  in  economics,  and  in  budget  accounts.  Only  by  securing  expert  advice 
can  the  ignorance  of  members  be  kept  from  continuing  to  be  responsible  for  a 
decline  of  legislative  authority.  Finally,  special  machinery  should  be  set  up 
to  inform  Parliament  how  public  funds  are  spent.  There  should  be  a  corps  of 
auditors  and  functionaries  and  inspectors  to  report  to  the  chambers.  Thus 
Parliament  would  secure  knowledge  that  would  permit  it  to  make  wise  economies 
and  justifiable  reductions  in  personnel.  "Justin,"  La  responsabiliti  du  Parlement 
sous  le  regime  parlementaire  (Paris,  1918). 


PRINCES  AND  PARLIAMENTS 


men  were  concentrated ;  the  prestige  of  the  House  of  Commons 
in  large  part  derives  from  the  fact  that  it  was  the  agency  through 
which  they  were  secured.  To-day  the  demand  has  drifted  to 
the  economic  sphere;  and  for  the  first  time  in  its  history  the 
House  of  Commons  is  squarely  confronted  by  a  demand  that 
the  concept  of  property  be  fundamentally  changed.  What  has 
so  far  emerged  with  clearness  in  the  struggle  is  the  fact  that  the 
demand  for  economic  equality  is  in  substance  different  from  the 
demand  for  political  equality;  and  the  doubt  accordingly  arises 
whether  the  House  is  fitted  for  that  effort.1 

Whether  the  parliaments  of  the  new  states  are  fitted 
for  such  an  effort  is  perhaps  the  most  important  question 
that  will  be  answered  by  eventualities  in  the  new  democra- 
cies. Lord  Morley  once  remarked  pessimistically  that 
although  over  three  hundred  constitutions  had  been  pro- 
mulgated in  Europe  between  1800  and  1880,  men  had  been 
very  slow  "in  discovering  that  the  forms  of  government 
are  much  less  important  than  the  forces  behind  them. 
Forms  are  only  important  as  they  leave  liberty  and  law 
to  awaken  and  control  the  energies  of  the  individual  man, 
while  at  the  same  time  giving  its  best  chance  to  the  com- 
mon good."2  It  is  with  this  "common  good"  that  the 
new  states  are  chiefly  concerned,  and  at  the  moment, 
"common  good"  may  almost  be  written  "common  goods." 

lThe  Nation  (London),  January  22,  1921. 

2Morley,  "Democracy  and  Reaction,"  Miscellanies  (Fourth  Series),  p.  300 
(London,  1908). 


How 

important 
are  forms  of 
government 


"Popular" 
government 


Relation  of 
executive  to 
legislature 


CHAPTER  II 
LEGISLATURES  AND  BUREAUCRATS 

FOR  reasons  that  have  already  been  discussed,  the 
attempt  has  been  made  in  all  of  the  constitutions  to  create 
"popular"  governments.1  From  this  point  of  view  the 
constitutions  contain  a  number  of  interesting  features. 
Two  of  these  deserve  special  consideration:  the  relation 
of  the  executive  to  the  legislature  and  the  control  of  ad- 
ministration. The  direct  government  features  which  ap- 
pear in  most  of  the  constitutions  do  not  require  special 
treatment.2 

It  is  a  striking  fact  that  in  all  of  the  new  constitutions 
the  attempt  is  made  to  secure  some  form  of  responsible 
parliamentary  government.3  "The  relation  of  the  Su- 
preme Executive  to  the  Legislative  organ  is  one  of  the 

JThe  new  states  have  avoided,  so  far  as  was  possible,  copying  from  the  Russian 
constitution  both  as  to  economic  and  governmental  theory.  The  legislatures 
have  ample  authority  (as  will  be  pointed  out  later)  to  interfere  with  private 
property,  but  whatever  measures  are  taken  will  be  matters  of  statutory  rather 
than  constitutional  enactment.  The  new  states  point  with  pride,  as  Poland  has 
done,  to  the  fact  that  their  constitutions  contain  "the  liberal  provisions  of  the 
Western  European  and  American  Constitutions"  but  nevertheless  afford  "a 
striking  contrast  to  the  communism  of  the  Soviet  Russian  Government."  Po- 
land's law  makers  "succeeded  in  the  difficult  task  of  combining  the  better  features 
of  the  constitutions  of  the  republics  of  the  world  and  adapted  them  to  the  pecu- 
liar needs  of  the  Polish  Republic." 

2They  are,  however,  considered  incidentally  in  this  Chapter  and  in  Chapter  IV. 

3"For  the  modern  world  the  choice  virtually  h'es  between  Parliamentary, 
Presidential,  and  Soviet  Democracy.  The  third  is  not,  perhaps,  wholly  incon- 
sistent with  the  first,  although  the  partisans  of  Soviet  Russia  denounce  repre- 
sentative democracy  with  a  fervor  equal  to  that  which  distinguished  Rousseau's 
criticism  of  the  English  Constitution.  Essentially,  however,  the  basic  principle 
of  Soviet  Government  is  merely  the  substitution  of  organized  industries  for 
locality  as  the  unit  of  representation,  or  rather  of  delegation.  The  incredible 
confusion  in  which  the  Soviet  has  involved  Russia — whether  the  confusion  be 
due  or  not  to  the  form  of  government — is  likely  to  discredit  any  further  experi- 
ment in  that  direction  for  some  time  to  come."  J.  A.  R.  Marriott,  "Conserva- 
tive Principles,"  Fortnightly  Review,  March,  1922. 

26 


LEGISLATURES  AND  BUREAUCRATS       27 

knottiest  points  in  constitutional  construction;  it  is  va- 
riously conceived  by  different  theoretical  politicians  who 
agree  in  accepting  the  principle  of  popular  control  over 
legislation,  and  variously  determined  in  different  modern 
states  in  which  a  popularly  elected  assembly  is  actually  a 
main  element  of  the  legislature."1  Before  the  recent 
experiments  in  Europe,  it  could  be  said,  generally,  that 
governments  were  divided  into  four  types  determined  by 
the  manner  in  which  they  treated  this  matter  of  the  rela- 
tion of  the  executive  and  the  legislature. 

There  was,  first  of  all,  the  English  parliamentary  system. 
The  Cabinet  retained  office  so  long  as  it  maintained  the 
confidence  of  the  House  of  Commons.  "Caprice,"  said 
Bagehot,  "is  the  characteristic  vice  of  miscellaneous  as- 
semblies, and  without  some  check  their  selection  of  exec- 
utives would  be  increasingly  mutable."2  Equilibrium 
was  maintained  in  England  by  the  ministerial  prerogative 
of  dissolving  the  legislature.  Secondly,  there  was  the 
rigid  system  of  a  separation  of  powers — best  illustrated 
by  the  United  States — under  which  the  Administration 
had  no  responsibility  to  the  chambers.  There  was, 
thirdly,  the  Swiss  collegial  executive,  elected  by  the  Fed- 
eral Assembly  but  not  responsible  to  it.3  Finally,  there 
was  the  German  constitutional  system,  with  a  cabinet 
not  responsible  to  the  legislature  but  to  the  monarch  who 
both  reigned  and  governed.  France,  it  may  be  said,  finds 
herself  midway  between  the  British  and  Swiss  systems. 
The  ministry  is  responsible  but  has  no  unrestricted  power 
of  dissolution;  and  the  ability  of  the  legislature  to  have  its 
way  makes  the  French  system  more  nearly  assimilable  to 
that  of  Switzerland.4 

'Sidgwick,  The  Elements  of  Politics,  p.  406  (London,  1891). 
*The  English  Constitution,  pp.  49-50. 

*See  Lowell,  Governments  and  Parties  in  Continental  Europe,  Vol.  II,  p.  198  S. 
(Boston,  1896). 

4Redsloh,  "La  constitution  prussienne,"  Revue  du  droit  public  ct  de  la  science 
pditique,  Vol.  XXXVIII,  p.  191  (Avril-Mai-Juin,  1921). 


Types  of 
executive 
relation  to 
legislature 


NEW  CONSTITUTIONS  OF  EUROPE 


Types  in  the 
new  states 


Recent 
changes  in 
English 
type 


The  relative  borrowings  of  the  new  states  from  these 
four  types  of  government  are  significant.  The  rigid  sys- 
tem of  the  United  States  apparently  had  no  attractions. 
Jugoslavia  is  the  only  instance  in  which  the  titular  execu- 
tive is  a  king.  Czechoslovakia  and  Poland  took  for  their 
models  the  French  constitution;  they  have  presidents 
elected  by  the  chambers  but  with  powers  somewhat  greater 
than  those  of  the  President  of  France.  Germany  has  a 
president  elected  by  the  people  but  a  cabinet  responsible 
to  the  legislature.1  Most  interesting  of  all,  however,  is  the 
arrangement  in  Esthonia  and  the  German  states  (Lander). 
The  ceremonial  executive  is  dispensed  with;  the  Swiss 
collegial  executive  is  the  model  that  is  most  closely  fol- 
lowed, with  the  important  difference  that  it  is  responsible 
to  the  legislature,  and  that,  in  determining  the  result  of 
conflicts,  the  people  are  to  be  consulted  directly. 

The  framers  of  the  new  constitutions  sought  rather 
obviously  to  avoid  the  extremes  of  the  English  and  French 
systems.  For  in  England,  as  has  been  suggested,  minis- 
terial responsibility,  however  nice  in  theory,  has  been 
sadly  attenuated  in  practice.  As  Mr.  Strachey  felici- 
tously said,  the  English  constitution  is  "a  living  thing, 
growing  with  the  growth  of  men  and  assuming  ever- 
varying  forms  in  accordance  with  the  subtle  and  complex 
laws  of  human  character.  It  is  the  child  of  wisdom  and 
chance."  It  happens,  therefore,  that  Bagehot's  incisive 
analysis  of  a  government  that  was  really  responsible  is  far 
from  being  true  of  existing  political  arrangements;  it  is 
what  he  himself  inveighed  against  as  "literary  theory." 
England  has  come  in  part  to  a  separation  of  powers.  The 
Prime  Minister  has  become  more  like  the  American  Presi- 
dent. He  has  thrown  off  a  large  part  of  his  dependence 
on  the  House  of  Commons,  where  he  appears  only  occa- 
sionally to  deliver  a  "message."  Mr.  Lloyd  George  deals 


*In  Austria  the  president  is  elected  by  the  legislature.     The  Federal  Ministry 
is  also  elected  on  nominations  by  the  main  committee  of  the  Nationalrat. 


LEGISLATURES  AND  BUREAUCRATS       29 

with  the  press  rather  than  with  Parliament.  It  is  the 
electorate  rather  than  the  division  lobby  that  is  the  arbiter 
of  the  fate  of  ministries.  Since  1870  (leaving  the  war 
changes  out  of  account,  for  they  do  not  affect  the  argu- 
ment) only  one  English  ministry  that  could  normally 
command  a  majority  in  the  House  of  Commons  has  been 
dismissed  by  the  independent  action  of  the  House.  The 
vast  extensions  of  the  suffrage,  the  payment  of  salaries  to 
members,  the  decline  (or  is  it  merely  difference?)  in  the 
character  of  public  men,  the  number  of  placemen  that  a 
Cabinet  has  in  the  Commons  and  can  always  rely  upon, 
the  recrudescent  menace  of  "direct  action,"  the  general 
weakening  of  faith  in  the  efficacy  of  parliamentarism — 
these  among  other  causes  may  be  indicated.  Mr.  Lloyd 
George's  own  opportunism  and  the  nadir  of  political  mo- 
rality reached  in  the  1918  election  are  not  responsible  for 
the  development;  they  merely  accentuated  it. 

In  striking  contrast  is  the  rapid  panorama  of  Cabinet  The 
crises  and  changing  personalities  which  gives  perennial  French 
interest  to  French  political  institutions.  M.  Clemenceau, 
an  ex-Prime  Minister,  breaks  a  long  silence;  the  Chamber 
of  Deputies  is  excited,  and  the  Government  trembles.  Mr. 
Wilson  or  Mr.  Asquith  could  cause  nothing  so  troublous; 
and  the  difference  is  not  one  of  personalities  but  of  con- 
stitutional structure.  In  England  and  the  United  States, 
office-holders  if  they  escape  scandal  have  some  assurance 
about  the  immediate  future;  but  in  France  the  Govern- 
ment is  always  facing  a  precarious  to-morrow.  Indeed, 
changes  of  government  in  England  are  now  so  rare  that 
those  who  hold  office  are  able  to  work  in  careless  security, 
while  those  in  opposition  criticize  with  faint  hope  of  suc- 
cess. In  the  United  States  the  popular  will  is  always  sub- 
ject to  the  calendar;  but  in  France  parliamentary  govern- 
ment is  subject  to  the  headline  news  of  any  day. 

As  has  been  indicated,  the  development  in  France  has 
been  different  from  that  in  England  because  the  French 


30 


NEW  CONSTITUTIONS  OF  EUROPE 


Reasons   for 
English   and 
French 
differences 


Types  in 
the  new 
states 


Ministry  does  not  have  the  power  to  dissolve  the  Chamber 
of  Deputies.  Responsibility  without  the  complementary 
power  of  dissolution  results  in  a  truncated  parliamentary 
system.  This  is  the  crux  of  the  matter,  although  the 
group  system  of  parties  in  France  would  under  any  condi- 
tions be  a  formidable  obstacle  to  the  smooth  working  of 
parliamentary  government.  This  is  an  obstacle,  also, 
with  which  the  new  states  of  Europe  are  confronted.  The 
average  tenure  of  Cabinets  under  the  Third  Republic  has 
been  less  than  eight  months.  Some  critics  have  consid- 
ered this  as  anarchic  rather  than  efficient;  they  have  cited 
it  as  demonstrating  the  political  incapacity  of  the  French. 
More  sympathetic  (and  more  accurate)  observers  have 
stressed  the  fact  that  these  recurrent  crises  do  not  cause 
breaks  in  the  continuity  of  policies;  a  Cabinet  change 
means  a  new  deal  of  the  same  cards  rather  than  a  different 
game.  Not  infrequently  more  than  half  the  members  of 
a  new  government  had  places  under  the  old.  Indeed, 
judged  by  results,  which  is  the  only  real  test,  the  French 
system  cannot  be  said  to  be  measurably  inferior  to  that  of 
England  or  the  United  States.  In  some  important  mat- 
ters— control  of  the  administration,  for  example — its 
superiority  is  arguable.  Nevertheless,  in  their  search  for 
a  nicely  balanced  parliamentary  system  the  new  states 
have  avoided  the  extremes  of  both  England  and  France. 

In  Germany  it  was  no  doubt  advisable  to  have  a  rather 
powerful  chief  of  state.  Not  only  were  the  people  accus- 
tomed to  authoritarianism,  but  during  the  revolutionary 
transition  a  strong  executive  authority  was  almost  indis- 
pensable.1 The  President  of  the  Reich  has  larger  powers 
than  the  President  of  the  French  Republic,2  particularly 

JSee,  for  example,  Article  48  of  the  constitution  which  gives  the  President  the 
right  to  declare  a  state  of  siege.  On  the  state  of  siege  in  continental  law,  see 
Willoughby  and  Rogers,  An  Introduction  to  the  Problem  of  Government,  Chapter 
VI. 

2For  an  interesting  discussion  of  recent  developments  in  France,  with  refer- 
ences to  the  literature  on  proposals  of  change,  see  Soltau,  "The  Present  Position 
of  the  French  President,"  Economica,  May,  1921. 


LEGISLATURES  AND  BUREAUCRATS       31 

with  regard  to  legislation.  He  has  no  direct  veto  power,  Germany 
but  when  a  law  has  been  passed  he  may,  before  promulga- 
tion, order  a  referendum  upon  it.  In  cases  of  disagree- 
ment between  the  Reichstag  and  Reichsrat  he  may  order 
a  referendum ;  and  under  Article  72  he  may  promulgate  a 
law  that  the  Reichstag  and  Reichsrat  have  declared  urgent 
even  if  a  third  of  the  Reichstag  has  demanded  that  the 
promulgation  be  deferred  in  order  to  allow  a  referendum. 
The  President,  moreover,  has  the  right  to  dissolve  the 
Reichstag,  although  this  is  not  the  only  way  in  which  dis- 
solution may  be  effected.  But  the  President's  power  in 
this  regard  may  be  a  very  material  factor  in  preventing 
such  frequent  Cabinet  changes  as  occur  in  France;  for  the 
authority  to  dissolve  the  Reichstag,  coupled  with  the 
discretion  that  he  has  with  regard  to  a  referendum,  will 
probably  give  the  German  President  a  dominating  position 
with  respect  to  the  responsibility  of  the  Cabinet  to  the 
Reichstag.  In  Austria  the  President  appears  to  have  much  Austria 
less  authority,  and  the  general  adjustment  of  relationships 
is  such  that  ministries  will  probably  not  enjoy  great  sta- 
bility. 

Poland's  President,  on  the  other  hand,  more  nearly  re-  Poland 
sembles  the  French  executive.  He  has  no  right  of  veto, 
nor  may  he,  like  the  President  of  France,  initiate  legisla- 
tion and  demand  a  reconsideration  of  a  law  to  which  he 
objects.1  There  is  ministerial  responsibility,  but  the 
power  of  dissolution  is  much  more  limited  than  in  Ger- 
many. The  Assembly  (Sejrti)  may  dissolve  itself  by  a 
two-thirds  majority  vote;  or  it  may  be  dissolved  by  the 
President  with  the  consent  of  three-fifths  of  the  statutory 
number  of  members  of  the  Senate,  which  is  dissolved  at  the 
same  time  (Article  26).  This  penalty  which  the  Senate 
must  suffer  if  it  exercises  its  prerogative  may  be  an  effec- 
tual deterrent.  It  seems  likely,  therefore,  that  these  con- 
stitutional adjustments  in  Poland  will  allow  a  legislative 

Government  and  Politics  of  France,  p.  44  (Yonkers,  1920). 


32 


NEW  CONSTITUTIONS  OF  EUROPE 


Czechoslo- 
vakia 


Esthonia 


dominance  over  the  ministry  similar  to  that  which  prevails 
in  France. 

In  Czechoslovakia  the  advantage  is  with  the  executive. 
The  President  is  the  strongest  executive  of  any  of  the 
new  states.  He  may  dissolve  the  Chamber  of  Deputies, 
and  he  also  appoints  and  dismisses  the  ministers,  who, 
however,  are  responsible  to  the  Chamber.  His  powers  of 
veto  and  of  patronage,  together  with  this  power  of  dissolu- 
tion, are  likely  to  constitute  an  adequate  protection  of  the 
Cabinet  against  the  caprice  of  the  legislature. 

As  has  been  mentioned,  however,  the  most  novel  ar- 
rangements are  found  in  Esthonia  and  the  German  states. 
Esthonia  has  the  simplest  of  the  new  constitutions — a 
unicameral  legislature  with  a  collegial  executive  responsi- 
ble to  it,  and  with  the  initiative  and  referendum  to  deter- 
mine conflicts  between  the  two  branches.  The  Govern- 
ment is  elected  by  the  legislature,  not  necessarily  from 
among  its  own  members,  and  must  resign  when  a  vote  of 
no-confidence  is  passed.  The  legislative  term  is  three 
years,  and  dissolution  before  the  end  of  this  period  may 
take  place  only  by  the  action  of  the  people.  Article  32 
of  the  constitution  provides  that  "if  the  people  reject  a 
law  passed  by  the  State  Assembly  or  accept  a  law  rejected 
by  the  Assembly,  new  elections  of  the  State  Assembly 
shall  be  proclaimed,  these  elections  to  take  place  not  later 
than  seventy-five  days  after  the  plebiscite."  In  other 
words: 


If  non-promulgation  is  carried,  a  vote  of  no-confidence  is  thus 
carried  in  the  electoral  body  against  the  Assembly,  which  is  ipso 
facto  dissolved.  The  initiative  procedure  demands  similarly 
25,000  electors.  They  submit  a  request  that  a  new  law  shall  be 
enacted  or  an  old  one  cancelled  or  amended.  The  request,  in 
the  form  of  an  elaborated  draft,  goes  to  the  Assembly,  and  the 
Assembly  either  passes  the  draft,  in  which  case  it  acquires  the 
force  of  a  law,  or  rejects  it.  If  rejected  the  draft  is  submitted 
to  a  plebiscite,  and  if  it  is  carried  again  the  Assembly  is  dissolved. 
It  is  thus  the  duty  of  the  Assembly,  when  the  draft  comes  before 


it,  to  gauge  the  popular  feeling,  and  act  in  accordance  with  it. 
If,  having  gauged  it,  the  Assembly  defies  it,  or  if  the  Assembly 
gauges  it  wrongly,  the  Assembly  is  judged  an  unworthy  instru- 
ment of  the  popular  will  and  dissolution  is  justified.  Dissolu- 
tion is  thus  parallel  to  the  Government's  compulsory  resignation 
after  a  vote  of  no-confidence  has  been  passed,  and  the  control 
of  the  Assembly  by  the  people  is  analogous  to  the  control  of 
the  Government  by  the  Assembly.  In  this  very  simple  con- 
trol-system a  President  is  out  of  place.  To  fit  him  into  the 
system  would  require  a  further  elaboration,  which,  by  confusing 
the  ordinary  citizen,  would  weaken  his  actual  grip  on  legislation, 
and  a  President  is  therefore  dispensed  with,  his  routine  duties 
being  part  of  the  heavy  burden  borne  by  the  Riigiwanem 
(Government).1 

Prussia's  constitutional  arrangements,  which  with 
minor  differences  are  found  in  most  of  the  other  members 
of  the  German  Reich,  provide  for  the  Swiss  collegial  exe- 
cutive; but  they  seek  to  approach  Great  Britain  in  allow- 
ing an  adequate  power  of  dissolution  as  a  complement  to 
ministerial  responsibility.  Dissolution  may  be  effected 
in  any  one  of  three  ways :  by  a  committee  consisting  of  the 
Minister  President,  the  President  of  the  Landtag,  and 
President  of  the  Staatsrat;  by  a  referendum  initiated  by  the 
people  or  by  the  Staatsrat;  or  by  a  decision  of  the  Landtag 
itself.  This  gesture  of  self-abnegation  will  probably  be 
made  only  when  the  Landtag  is  reasonably  confident  of  its 
support  in  the  country  or  when  it  sees  that  dissolution  is 
to  be  forced  upon  it  by  one  of  the  other  available  methods. 
But  the  ability  of  the  Minister  President  to  threaten  dis- 
solution if  he  can  secure  the  cooperation  of  one  of  the 
legislative  presidents  seems  likely  to  make  for  a  measure 
of  ministerial  stability.2 

1R.  T.  Clark,  "The  Constitution  of  Esthonia,"  Journal  of  Comparative  Legis- 
lation and  International  Law,  Third  Series,  V(M.  Ill,  p.  249  (October,  1921).  It 
may  be  pointed  out  that,  while  provision  is  made  for  interim  ministers  when 
members  of  the  Government  resign  (Article  59),  the  Government  apparently 
perishes  with  the  Assembly  if  the  latter  is  dissolved  as  the  result  of  a  plebiscite. 
Some  amendment  of  the  constitution  would  seem  to  be  necessary . 

'See  Redslob,"La  constitution  prussienne,"  Revue  du  droit  public  et  de  la  science 
politigue,  Vol.  XXXVIII,  p.  192  (Avril-Mai-Juin,  1921). 


Prussia  and 
the  other 
German 
states 


34 


NEW  CONSTITUTIONS  OF  EUROPE 


Legislative 
control 
during 
parliamen- 
tary 
recesses 


In 

Czechoslo- 
vakia 


All  of  the  new  constitutions  devote  some  attention  to 
the  problem  of  legislative  control  of  the  administration. 
Questions  and  interpellations  addressed  to  the  ministers 
are  provided  for,  and  parliamentary  commissions  are 
created  on  the  model  of  the  French  commissions  to  exer- 
cise a  day -by-day  control  of  the  executive.1  "Private 
members,  like  Governments,"  it  has  been  said  with  par- 
ticular reference  to  England,  "have  all  got  legislation  on 
the  brain  and  think  that  the  primary  business  of  Parlia- 
ment is  to  legislate,  whereas  in  fact  it  is  to  look  after  the 
administration  of  existing  laws  so  well  that  no  new  laws 
or  very  few  are  necessary."2  Cabinet  responsibility,  in- 
terpellations that  lead  to  publicity,  and  commissions, 
either  permanent  or  for  particular  investigations,  are  the 
expedients  that  governments  have  usually  used  for  the 
supervision  of  the  administrative  authorities.  For  the 
most  part,  however,  they  are  expedients  that  operate  only 
while  the  legislature  is  in  session.  It  is  interesting  to  note, 
therefore,  that  the  new  governments  provide  for  a  con- 
tinuance of  this  control  during  parliamentary  recesses. 
As  a  commentator  on  the  Czechoslovak  constitution 
says: 

The  democratic  spirit  of  our  constitution  is  likewise  shown  in 
Article  54  of  the  Charter  of  the  Constitution.  This  paragraph 
provides  for  the  setting  up  of  a  permanent  Committee — two- 
thirds  of  the  members  of  which  are  taken  from  the  House  of 
Deputies  and  one-third  from  the  Senate — which  shall  take  the 
place  of  the  National  Assembly  when  the  latter  is  unable  to  sit. 
Governmental  and  executive  authority  is  thus,  in  principle, 
devoid  of  such  power  as  was  possessed,  for  example,  by  the 
Government  of  the  former  Austrian  Empire  in  virtue  of  the 
notorious  Article  XIV  of  the  law  relating  to  the  representation 
of  the  Empire.  The  Charter  of  the  Constitution  does  not  per- 

1See  Willoughby  and  Rogers,  op.  eft.,  pp.  215,  251. 

«"A  Student  of  Politics"  in  the  London  Times,  April  17,  1920.  Mr.  C.  D. 
Burns  has  called  attention  to  the  fact  (noted  by  the  Temps,  April  5,  1920)  that 
of  thirty-six  sittings  of  the  French  Chamber  before  April  5,  1920,  nineteen  were 
devoted  to  "  interpellations  "  as  against  seventeen  to  legislation.  Government  and 
Industry,  p.  62  (London,  1921). 


LEGISLATURES  AND  BUREAUCRATS       35 

mil  the  Government  of  our  state  to  remain  for  one  moment 
without  the  control  nor  yet  the  aid  of  the  legislative  body.1 

A  similar  committee  is  provided  for  in  the  German  In 
constitution.  It  was  formed  on  the  model  of  a  committee  Germany 
already  in  existence  in  the  Grand-Duchy  of  Baden  before 
the  revolution.  Its  purpose  is  to  safeguard  the  right  of 
popular  representation  against  the  Cabinet  when  the 
Reichstag  is  not  in  session.  Monarchical  traditions  of  an 
executive  exercising  extensive  ordinance-making  powers 
give  warrant  for  precautions  of  this  kind.  (The  emascula- 
tion of  the  executive  authority  under  early  American 
constitutions  may  be  pertinently  recalled.)  When  the 
German  constitution  was  being  framed  such  a  committee 
"was  the  subject  of  much  lively  opposition.  Some  held 
that  the  Cabinet,  so  long  as  it  enjoyed  the  confidence  of 
the  Reichstag,  did  not  require  a  special  organ  of  surveil- 
lance. This  committee,  its  opponents  went  on,  was  only 
an  application  of  the  conception  that  assumed  an  opposi- 
tion between  the  Cabinet  and  popular  representation.  It 
was  incompatible,  therefore,  with  the  principle  of  parlia- 
mentarism that  rests  on  a  harmony  of  the  Cabinet  and  the 
Parliament.  But  the  majority  of  the  Constituent  Assembly 
held,  on  the  contrary,  that  this  committee  would  corre- 
spond fully  in  character  to  the  Reichstag  as  an  organ  of 
control,  and  would  be  consistent  with  the  confidence  and 
the  good  will  on  which  the  Cabinet  depends."2  In  Prussia,  In  Prussia 
also,  there  is  a  permanent  commission  to  represent  the 
legislature  in  the  intervals  between  sessions;  the  ministers 
will  thus  never  be  without  some  measure  of  parliamentary 
control.3 

Attention  should  also  be  directed  to  the  attempt  that 

TOoetzl,  The  Constitution  of  the  Czechoslovak  Republic,  p.  15  (Prague,  1920). 
For  the  text  of  the  Austrian  article  referred  to,  see  Willoughby  and  Rogers,  op. 
dt.,  p.  377  n. 

*Ren6  Brunet,  The  New  German  Constitution,  p.  152  (New  York,  1922). 
3See  Redslob,  op.  cit.,  p.  193. 


36 


NEW  CONSTITUTIONS  OF  EUROPE 


Democrati- 
zation of 
administra- 
tion 


The  new 
states  try 
experiments 


has  been  made  in  some  of  the  new  states  to  democratize 
the  public  administration.  Thus,  the  Czechoslovak  con- 
stitution declares  that  the  "civic  element"  shall  be  as 
far  as  possible  represented  in  the  subordinate  offices  of 
state.  "The  law  creating  special  administrative  bodies 
for  the  counties  and  the  districts  represents  an  effort  to 
put  this  constitutional  principle  into  practice.  It  is  a 
bold  step  toward  reorganizing  public  administration  in  a 
more  democratic  direction.  The  civic  element  thus  par- 
ticipates in  all  political  administration  (interior)  in  the 
subordinate  offices  (ministries  are  an  exception).  This 
participation  is  particularly  conspicuous  in  the  organiza- 
tion of  the  administrative  Courts  .  .  .  where  it  is  a  matter 
of  the  protection  of  the  rights  and  interests  of  citizens."1 
The  results  of  these  several  experiments  to  create  new 
adjustments  as  between  executives,  legislatures,  and 
peoples  will  be  of  great  interest  to  the  student  of  compara- 
tive politics.  In  some  cases,  no  doubt,  judgment  will  have 
to  be  suspended  for  the  reason  that  popular  government  is 
being  tried  for  the  first  time  by  peoples  who  have  had 
little  or  no  experience  in  governing  themselves.  Political 
incapacity  will  probably  be  responsible  for  some  criticism 
of  governmental  arrangements  that  are  theoretically 
sound.  On  the  other  hand,  constitutional  adjustments 
that  appear  to  be  faulty  and  cumbersome  will  not  inevi- 
tably result  in  political  mismanagement.  The  laws,  as 
Burke  said,  reach  but  a  little  way.  Every  government  is 
a  government  of  men  as  well  as  of  laws.  No  matter  how 


'Hoetzl,  op.  cit.,  pp.  16, 17.  As  another  writer  has  said :  "  To  the  many  political 
cries  that  disturb  the,  in  any  case,  uncertain  tranquillity  of  the  Continent  a  new 
one  has  now  been  added,  starting  from  Central  Europe  and  making  itself  heard 
to  the  west,  south,  and  north — the  cry  for  democratization  of  administration. 
By  this  is  meant  a  shifting  of  the  distribution  of  power  in  every  branch  of  public 
administration.  Administration  is  ultimately  to  rest  in  the  hands  of  the  people, 
not  in  the  hands  of  the  authorities  in  the  State  and  Commune.  The  authorities 
hitherto  in  charge  are  to  be  degraded  to  the  position  of  mere  advisers  or  even  of 
servants.  They  no  longer  give  commands,  they  carry  out  the  commands  of  the 
people.  The  people  no  longer  wishes  to  be  governed,  but  to  govern  itself." 
Carl  Brockchausen,  "Administrative  Democracy:  A  Continental  Aspiration," 
The  New  Europe,  May  20,  1920. 


LEGISLATURES  AND  BUREAUCRATS        37 

a  government  is  constituted,  much  depends  on  the  wisdom 
and  discretion  of  those  who  have  it  in  charge.  The  rela- 
tion between  executive  and  legislature  is  important  but 
not  decisive.1 

The  framers  of  the  new  constitutions  of  Europe  have  The  test 
sought  to  secure  arrangements  that  would  be  flexible,  but 
not  too  flexible;  that  would  be  sufficiently  rigid,  but  not 
too  rigid.  The  supreme  test  will  be  what  these  govern- 
ments actually  do.  The  chief  concern  of  the  new  states 
is  for  legislation  based  on  sound  principles  of  distributive 
justice. 


is  fact  finds  illustration  in  two  recent  books  on  constitutional  changes  in 
the  United  States  and  England. 

An  American  writer,  William  MacDonald,  in  a  tractate  entitled  A  New  Con- 
stitution for  a  New  America  (New  York,  1921),  urges  the  adoption  of  Cabinet 
government  in  the  United  States.  The  argument  pays  no  attention  to  the  fact 
that  in  England  and  France  the  present  phase  of  Cabinet  responsibility  can  be 
objected  to  just  as  forcibly  as  the  author  objects  to  the  separation  of  powers  in 
the  United  States,  and  that  in  the  United  States  public  administration  could  be 
improved  and  Congress  made  more  efficient  and  responsible  without  laying  im- 
pious hands  on  the  ark  of  the  covenant. 

In  England  Sidney  and  Beatrice  Webb,  in  A  Constitution  for  the  Socialist 
Commonwealth  of  Great  Britain  (London,  1921),  have  written  of  their  own  insti- 
tutions in  much  the  same  way  that  Mr.  MacDonald  has  written  of  America. 
They  are,  however,  more  concerned  with  economics  than  with  politics.  National- 
ized industries  and  services,  district  councils,  works  committees,  the  reorganiza- 
tion of  local  government,  industrial  and  public  services  by  the  local  authorities, 
the  cooperative  movement  and  other  voluntary  associations  of  consumers,  the 
trade-union  movement  and  other  vocational  organizations  —  these  are  the  things 
that  the  Webbs  stress.  However  people  may  differ  in  their  conceptions  of  what 
constitutes  the  "common  good,"  it  is  probably  a  fact  that  vocational  ethics  and 
technique  and  the  spirit  and  efficiency  of  the  public  service  are  of  more  impor- 
tance to  the  average  man  than  the  constitutional  relation  between  the  executive 
and  the  legislature.  Progress  is  possible  whatever  may  be  the  finical  adjustment 
of  governing  agencies. 


Most  new 
legislatures 
are 
bicameral 


Second 
chambers 
are  also 
secondary 


CHAPTER  III 
SECONDARY  CHAMBERS 

ONE  of  the  most  interesting  features  of  the  new  constitu- 
tions of  Europe  is  found  in  the  provisions  relating  to  second 
chambers.  Most  of  the  legislatures  are  bicameral.  Only 
Finland,  Esthonia,  and  Jugoslavia  have  been  bold  enough 
to  dispense  with  the  time-honored  check  of  an  upper  and 
usually  less  popular  legislative  body.1 

Various  methods  are  employed  for  electing  the  members 
of  these  second  chambers,  and  their  powers  and  relative 
positions  in  the  several  schemes  of  government  are  by  no 
means  identical.  But  on  one  point  of  principle  they  prac- 
tically all  agree:  these  upper  chambers,  far  from  being 
superior  to  the  lower  chambers,  as  was,  for  example,  the 
Bundesrat  of  the  former  German  Empire,  are  not  even 
coordinate  with  them.  They  are  placed  in  a  distinctly  sub- 
ordinate position.  They  are  not  only  second  but  also 
secondary  chambers.  For  the  constitutional  distribution 
of  power  is  such  that,  while  they  may  impede  and  delay, 
they  cannot  ultimately  withstand  the  determined  will  of 
the  lower  and  more  popular  body.  Deadlocks  are  care- 

JSixteen  of  the  Swiss  cantons,  sixteen  of  the  smaller  German  states  (before  the 
revolution),  and  six  of  the  provinces  of  Canada  are  cited  as  adherents  of  the  uni- 
cameral  principle.  Experiments  in  Bulgaria,  Montenegro,  and  Norway,  and  a 
few  Latin-American  states  should  also  be  mentioned.  H.  W.  V.  Temperley,  Sen- 
ates and  Upper  Chambers,  p.  9  (London,  1910). 

The  recent  action  of  the  Queensland  Government  in  abolishing  its  legislative 
council  attracted  some  attention.  The  Council,  the  Prime  Minister  of  Queens- 
land said,  "was  the  home  of  reactionary  interests.  Few  will  mourn  its  fate, 
and  few  hope  for  its  resurrection."  The  abolition  of  the  Council  was  of  some 
interest  to  the  English  House  of  Lords  which  adopted  a  motion  calling  on  the 
Government  for  all  the  papers  relating  to  the  Royal  Assent  in  the  matter.  Vis- 
count Chelmsford,  a  former  Governor  of  Queensland,  said  he  did  not  "suggest 
that  the  British  Parliament  should  interfere  in  any  way  with  the  self-governing 
power  of  the  Dominions,  but  in  a  matter  of  such  importance  it  would  be  well 
that  information  should  be  given."  The  London  Times,  March  29,  1922. 

38 


SECONDARY  CHAMBERS 


39 


fully  guarded  against.  If  the  upper  house  refuses  consent 
to  a  bill,  repassage  by  the  lower  house  or  ratification  by 
the  voters  upon  a  referendum  is  commonly  sufficient  to 
enact  the  rejected  proposal  into  law. 

It  is  unnecessary  to  digest  and  compare  the  constitu- 
tional provisions  relating  to  these  second  chambers.  Ref- 
erence to  the  texts  of  the  several  constitutions  will  disclose 
their  family  resemblance  and  their  individual  differences . 
Until  the  debates  and  documentary  materials  of  the  va- 
rious constituent  assemblies  are  available,  the  motives 
which  determined  their  special  characteristics  will  be  un- 
certain. On  the  "face  of  the  returns,"  however,  one  or 
two  points  seem  fairly  certain.  In  the  first  place,  the 
upper  chambers  in  such  countries  as  Germany  and  Austria 
were  doubtless,  to  an  extent  at  least,  adjuvant  parts  of 
the  federal  scheme  that  was  adopted;  the  attempt  was 
made  to  provide  in  the  second  chamber  representation  of 
the  component  states  as  political  entities.  In  the  second 
place,  speaking  generally,  the  creation  of  second  chambers 
was  doubtless  not  due  to  opposition  to  the  "democratic 
idea."  So  far  as  appearances  go,  most  of  these  constitu- 
tions are  ultra-democratic;  and  if  two  houses  are  desired 
merely  in  the  interest  of  deliberateness  and  delay,  it  is 
quite  as  easy,  though  perhaps  not  as  reasonable,  to  create 
a  popular  upper  house  as  a  popular  lower  house.  The 
motive,  therefore,  for  the  establishment  of  upper  cham- 
bers was  probably  not  anti-democratic.  Apart  from  spe- 
cial considerations,  it  was  no  doubt  a  matter  of  habit, 
of  conscious  or  unconscious  regard  for  the  habits  of  others, 
and  of  genuine  belief  in  the  value  of  the  check  that  is 
afforded  by  requiring  that  identical  action  shall  be  taken 
by  two  separated  and  quasi-independent  groups  of  repre- 
sentatives. 

In  the  third  place,  whatever  may  have  been  the  reasons 
for  the  adoption  of  the  bicameral  principle,  the  reason 
for  the  subordination  of  upper  chambers  to  lower  chambers 


Reasons  for 

second 

chambers 


40 


NEW  CONSTITUTIONS  OF  EUROPE 


Reason  for 
subordina- 
tion of 
second 
chambers 


Illustrated 
by  House 
of  Lords 


is  fairly  apparent.  All  of  these  constitutions  provide  for 
governments  under  which  the  ministry  is  responsible 
to  parliament.  A  ministry  responsible  to  two  coequal 
assemblies  is  a  cumbersome  and  well-nigh  unworkable 
institution.  Ministerial  responsibility  implies  a  unitary 
system  of  representative  control.  A  ministry  cannot 
serve  two  masters.  Witness  the  experience  of  France 
or  of  Italy  or  of  any  other  country  in  which  the  upper 
chamber  had  been  placed  in  a  position  in  which  it  could 
interfere  in  the  relation  of  responsibility  between  the  min- 
istry and  the  lower  chamber.  The  result  has  always  been 
a  weakening  of  the  foundations  of  the  system.  In  Eng- 
land, where  the  system  originated,  the  Ministry  has  never 
been  regarded  as  in  any  respect  responsible  to  the  Lords. 
Nevertheless,  before  1911  the  House  of  Lords  was  in  legal 
theory  a  coordinate  branch  of  parliament.1  In  case  of 
disagreement  with  the  Commons  and  the  Ministry,  it 
could,  by  actually  asserting  its  coequality  of  powers,  ut- 
terly destroy  the  effectiveness  of  the  system.  The  Minis- 
try might  still  be  responsible  to  the  Commons;  but  what 
purpose  could  such  responsibility  serve,  if  the  machinery 
of  its  operation  could  be  suddenly  stopped  by  the  action 
of  a  body  that  had  no  part  whatever  in  the  scheme  of  re- 
sponsible relationships?  A  resignation  of  the  Ministry  or 
a  dissolution  of  the  Commons  would  be  futile  as  against 
the  legal  powers  of  the  Lords  to  obstruct.  This  was  the 
situation  that  developed  in  England  in  1909;  and  as  a 
result  the  House  of  Lords  was  by  the  Parliament  Act  of 
1911  placed  definitely  in  a  position  of  legal  subordination 
to  the  Commons — in  a  position  in  which  it  could  cause  de- 
lay but  not  defeat.  This  act  was  a  clear  admission  of  the 
difficulty,  not  to  say  impossibility,  of  satisfactorily  com- 
bining a  scheme  of  ministerial  responsibility  with  a  scheme 

irThere  was  some  dispute  as  to  the  "constitutional"  competence  of  the  Lords 
to  alter  money  bills.  Moreover,  in  case  of  recalcitrance  there  was,  of  course, 
the  more  or  less  remote  possibility  of  the  Lords  being  whipped  into  line  by  the 
creation  of  new  peers — a  power  which  lay  in  the  hands  of  the  Ministry. 


SECONDARY  CHAMBERS 


41 


of  coequal  legislative  chambers.  Even  with  an  upper 
chamber  that  is  periodically  renewed  by  election  or  in 
some  other  manner,  the  possibility  of  a  deadlock  would 
remain.  And  in  the  face  of  a  deadlock  between  the 
chambers,  ministerial  responsibility  would  simply  fail  to 
function. 

Those  who  drafted  the  new  constitutions  of  Europe  were 
probably  not  ignorant  of  the  institutional  history  of  par- 
liamentary government  in  other  countries.  They  must 
have  known  the  difficulties  that  second  chambers  had 
caused.  Whether  or  not  they  actually  borrowed  from  the 
British  Parliament  Act  of  1911,  their  schemes  for  control- 
ling second  chambers  were  directed  toward  similar  ends. 
It  is  of  interest,  therefore,  to  study  the  schemes  that  are 
provided  in  these  new  constitutions  in  the  light  of  the 
situation  that  prevails  in  England  as  well  as  in  the  light  of 
current  discussions  and  proposals  for  further  "reform"  of 
the  House  of  Lords.  For  the  Parliament  Act  of  1911  was 
admittedly  a  temporary  measure.1 

Prior  to  1832  England  was  really  ruled  by  an  oligarchy 
of  landowners.  The  House  of  Lords  was  powerful;  but 
it  did  not  insist  on  legislative  primacy  or  even  equality. 
Its  control  was  exerted  more  indirectly  but  none  the  less 
effectively.  The  great  offices  of  state  were  held  by  peers, 
and  a  large  proportion  of  the  members  of  the  House  of 
Commons  were  nominated  by  the  noble  landowners. 

1In  the  jockeying  that  took  place  in  the  first  weeks  of  1922  over  the  advisabil- 
ity of  a  general  election,  the  Conservative  section  of  Mr.  Lloyd  George's  coali- 
tion interposed  objections  which  were  based  very  largely  on  this  matter  of  the 
Parliament  Act.  Mr.  Lloyd  George  was  lukewarm.  His  instinct  is  probably 
against  a  strong  second  chamber  as  a  bulwark  of  conservatism.  He  may  feel 
also  that  he  would  be  better  off  under  existing  circumstances  if  the  political 
situation  made  him  desire  to  sponsor  a  program  of  radical  legislation  com- 
parable to  that  of  1909.  There  is,  furthermore,  the  question  of  the  position 
of  the  executive  in  a  truly  bicameral  system  which  is  discussed  below.  "An 
English  Liberal"  outlined  the  issue  as  follows: 

"  In  particular  they  [the  Conservatives]  demand  the  reform  of  the  House  of 
Lords,  which  Mr.  George  included  in  his  election  compact  with  the  Tories  in 
1918.  Reform  of  the  House  of  Lords  is  a  thing  which  the  real  Conservatives 
care  very  much  about.  It  means,  no  doubt,  the  abandonment  of  the  hereditary 
principle  and  the  substitution  of  a  comparatively  democratic  House,  but  this 


Parliament 
Act  of  1911 


Position 
of  the 
Lords 
1832-1886 


NEW  CONSTITUTIONS  OF  EUROPE 


Reasons   for 
non- 
interference 
with  the 
Lords 


From  1832  to  1886,  the  suffrage  was  gradually  extended 
and  legal  democracy  arrived.  Nevertheless,  popular  dis- 
content manifested  itself  in  Chartism  and  Trade  Unionism; 
for  the  political  power  of  the  legal  democracy  remained 
where  it  had  been  formerly,  or  else  was  so  manipulated 
that  it  was  nugatory.  In  the  struggle  for  political  su- 
premacy between  the  landed  aristocracy  and  the  new 
industrial  plutocracy,  the  second  chamber  lived  serenely 
on.  There  was,  indeed,  for  several  reasons,  little  or  no 
discussion  of  its  composition  and  constitutional  authority. 
In  the  first  place,  "the  attacking  force  of  the  new  plu- 
tocracy was  led  by  a  group  of  the  greatest  landowning 
magnates,  the  Whigs;  who,  never  doctrinaire  in  their  Lib- 
eralism, and  proud  of  their  order  (for  they  were  always 
the  most  exclusive  of  aristocrats),  were,  on  the  one  hand, 
loath  to  overthrow  the  House  that  had  once  been  their 
stronghold,  and  were,  on  the  other  hand,  able  to  make 
the  political  reconstruction  easier  for  their  fellow  peers 
to  accept."  In  the  second  place,  the  House  of  Lords  "ac- 
cepted the  guidance  of  leaders  who  recognized  when 
defeat  must  be  admitted."  There  was,  as  a  consequence, 
no  real  second  chamber  at  all;  the  Lords  simply  did  not 

House  will  be  conservative  in  character  and  its  reconstitution  will  be  accom- 
panied, in  the  Conservative  plan,  by  the  abolition  of  the  Parliament  Act.  Now 
the  Parliament  Act  is  the  guarantee  to  any  Liberal  or  Labor  government — and 
it  is  the  possibility  of  a  Labor  government  that  the  Conservatives  keep  in  view — 
that  they  can  get  any  large  piece  of  reform  substantially  unchanged  through  the 
House  of  Lords,  for  any  bill  sent  up  by  the  House  of  Commons  can  only  be  re- 
jected twice  with  effect  by  the  Lords;  at  its  third  appearance,  whether  accepted 
or  rejected  by  them,  it  goes  on  the  statute  book.  Really,  therefore,  the  Tory 
party  through  Sir  George  Younger  are  asking  that  the  Parliament  Act,  the  hope 
of  the  Labor  party,  should  be  repealed  before  the  present  government  go  to  a 
general  election."  "Lloyd  George  and  the  Ides  of  March,"  The  New  Republic, 
February  1,  1922. 

The  King,  in  his  speech  opening  Parliament  on  February  7,  1922,  said:  "Pro- 
posals will  be  submitted  to  you  for  the  reform  of  the  House  of  Lords  and  for 
the  adjustment  of  differences  between  the  two  Houses."  Substantially  the  same 
pledge  was  given  the  previous  year:  "My  Ministers  further  trust  that  the 
work  of  the  Committee  now  examining  the  question  of  the  Reform  of  the  Second 
Chamber  will  be  finished  in  time  to  permit  of  proposals  being  submitted  to 
Parliament  during  the  course  of  the  present  Session."  February  15,  1921. 
The  Committee  referred  to  was  presumably  within  the  Cabinet,  for  the  Bryce 
Report  of  1918  had  already  been  published,  and  no  announcement  had  been 
made  of  the  appointment  of  any  other  body  to  consider  the  problem. 


SECONDARY  CHAMBERS  43 

assert  their  legal  competence.  There  was  "no  check  or 
effective  criticism  on  the  measures  of  one  party,  and  only 
vexatious,  timid,  and  partisan  delays  on  the  measures  of 
the  other.  The  second  chamber  seemed  to  be  so  weak 
as  to  be  scarcely  worth  abolishing,  and  most  men  thought 
it  was  doomed  to  be  merely  one  of  those  picturesque  and 
useless  forms  with  which  the  British  system  abounds." 
And,  finally,  it  has  been  suggested  that  the  commercial 
plutocrats  of  the  Liberal  party  "had  their  full  share  of  the 
characteristic  British  virtue  of  snobbery,  and  longed  to 
become  members  of  a  class  which  they  had  for  two  genera- 
tions been  attacking."1 

After  1886  the  House  of  Lords  rejected  certain  Liberal  The  parlia- 
measures,  but  its  own  composition  and  powers  were  not  ment  act 
brought  into  serious  question.  During  the  Unionist  ascend- 
ancy there  was,  of  course,  no  trouble;  and  the  issue  was 
not  drawn  until  the  Liberals  came  into  power  in  1906.2 
Thereafter  the  issue  was  joined  and  reached  its  climax  in 
1909-1911.  As  has  been  said,  however,  the  Parliament 
Act  of  1911  was  a  temporary  expedient.  Its  preamble  de- 
clared that  a  second  chamber  would  be  "constituted  on 
a  popular  instead  of  hereditary  basis";  and  Mr.  Asquith 
in  a  debate  in  the  House  of  Commons  declared  that  the 
pledge  was  a  "debt  of  honor."3 

The  war  intervened  before  the  Liberals  could  proceed 

'Ramsay  Muir,  Peers  and  Bureaucrats,  pp.  102-104  (London,  1910). 

*"In  1869  Lord  Russell  carried  to  a  second  reading  a  Life-Peerage  Bill.  In 
1884  Lord  Rosebery  presided  over  a  Select  Committee  which  recommended 
certain  changes  in  regard  to  the  Scotch  and  Irish  Peers.  The  same  statesman 
tried  to  interest  the  Lords  in  larger  schemes  in  1884,  and  again  in  1888,  but  on 
both  occasions  in  vain.  Lord  Salisbury,  in  1888,  did  actually  embody  certain 
definite  proposals  in  a  Bill  which  was  read  twice  in  the  House  of  Lords,  but  he 
did  not  persevere,  and  thus  the  Tory  party  lost  an  opportunity  of  '  reform  from 
within,'  which  will  never  recur."  In  December,  1908,  a  Committee  headed  by 
Lord  Rosebery  made  recommendations,  but  they  were  very  conservative  and 
in  any  event  it  was  too  late  for  them  to  receive  a  hearing.  J.  A.  R.  Marriott, 
"The  Problem  of  a  Second  Chamber,"  Edinburgh  Review,  July,  1917. 

MDn  the  issues  raised  by  the  Parliament  Act,  see  McKechnie,  Reform  of  the 
House  of  Lords  (London,  1909);  Lord  Rosebery,  The  Reform  of  the  House  of  Lords 
(London,  1910);  Lord  Selborne,  The  State  and  the  Citizen  (London,  1913);  and 
"Second  Chamber  Supplement,"  The  New  Statesman,  February  7,  1914. 


44 


NEW  CONSTITUTIONS  OF  EUROPE 


The  Second 
Chamber 
Conference 
of  1917 


Opposition 
to  Bryce 
Conference 
Report 


with  their  program.  Nothing  was  done  until  August 
25,  1917,  when  the  Prime  Minister  appointed  a  Second 
Chamber  Conference,  composed  of  peers  and  commoners, 
under  the  chairmanship  of  Lord  Bryce.  The  members 
were  so  far  from  unanimous  that  the  report  took  the  form 
of  a  letter  from  Lord  Bryce  to  the  Prime  Minister,  arguing 
at  some  length  concerning  the  kind  of  second  chamber  that 
England  should  have  and  making  recommendations  as  to 
its  composition.1 

Democracy  was  so  diluted  in  the  scheme  proposed  that 
the  Coalition  Government  hesitated  to  press  for  reform 
within  the  limits  indicated  by  the  Bryce  Conference. 
The  Unionists,  however,  would  doubtless  have  welcomed 
such  a  pis  alter  in  order  to  have  a  line  of  defense  against  a 
possible  Labor  majority  in  the  Commons.  The  powers 
that  Lord  Bryce  proposed  for  the  second  chamber  would 
do  much  to  nullify  the  victory  won  by  the  Commons  in 
the  1909-1911  struggle.  Since  that  time  there  has  cer- 
tainly been  no  retrogression  in  the  democratic  movement 
in  Great  Britain.  If  the  war  seemed  to  result  in  some  in- 
crease of  prestige  for  the  Lords,2  this  was  due  not  to  any 
change  in  the  character  or  position  of  the  upper  house, 
but  to  a  relative  decline  in  the  prestige  of  the  Commons.3 


letter  is  reprinted  below,  Appendix  V. 

2"For  long  years  Liberals  have  been  fighting  for  a  thoroughly  representative 
system  and  for  imposing  restraint  upon  the  reactionary  tendencies  of  the  Upper 
House.  And  having  accomplished  then'  aim,  they  find  that  they  have  to  turn, 
for  the  experience  of  whatever  remnant  of  enlightened  and  liberal-minded 
opinion  there  remains,  from  the  House  of  Commons  to  the  House  of  Lords. 
There  at  least  an  occasional  weighty  voice  is  heard  in  protest  against  the  follies 
of  the  government.  There  at  least  is  some  reminiscence  of  the  spirit  of  inde- 
pendent criticism,  which  has  certainly  vanished  from  a  House  of  Commons  that 
exists  simply  to  register  the  decrees  of  a  ministry."  A.  G.  Gardiner,  "The 
Twilight  of  Parliament,"  The  Atlantic  Monthly,  August,  1921. 

3Lord  Esher  quotes  C.  F.  G.  Masterman  on  the  condition  of  England:  "The 
rather  ignoble  r&le  played  by  the  House  of  Lords  during  the  past  decade  reveals 
its  weaknesses.  It  will  allow  changes  which  it  profoundly  dislikes  when  com- 
pelled by  fear.  It  will  resist  changes  in  action  when  that  fear  is  controlled.  It 
will  altogether  abandon  the  effort  to  initiate  changes  where  change  is  essential. 
It  can  do  little  but  modify,  check,  or  destroy  other  men's  handiwork.  It  has 
no  single  constructive  suggestion  of  its  own  to  offer  to  a  people  confronting  dim- 


SECONDARY  CHAMBERS  45 

The  wide  extension  of  the  suffrage  under  the  Representa- 
tion of  the  People  Act  of  1918  assuredly  does  not  lend  aid 
and  comfort  to  those  who  would  find  place  for  a  powerful 
upper  chamber,  "different"  but  none  the  less  undemo- 
cratic. Even  so,  Lord  Bryce's  proposals  are  of  great 
interest;  and  they  are  none  the  less  significant  from  the 
point  of  view  of  the  alternatives  that  were  passed  over. 
For  example,  nomination  for  life,  as  in  Canada  and  Italy, 
was  rejected;  so  likewise  was  indirect  election  by  local 
bodies.1 

The  Bryce  report  suggested  the  recruitment  of  the  second  The  Bryce 
chamber  by  a  mixed  process  of  derivation  and  cooptation.  proposal 
The  greater  part  of  the  members  would  be  chosen  by, 
though  not  from,  the  House  of  Commons,  divided  into 
geographical  groups.  The  smaller  part  would  be  named 
by  a  joint  committee  of  the  two  houses,  in  the  fixed  pro- 
portions of  those  great  interests  from  which  the  House  of 
Lords  originally  sprang:  the  Church  and  the  Land.  To 
this  body,  which  would  probably  consist  of  aged  or  middle- 
aged  members,  predominantly  conservative,  would  be 
given  material  powers,  but  not  a  veto  on  acts  passed 

cult  problems  and  harassed  by  the  obligations  of  necessary  reorganizations. 
It  can  neither  breed  leaders  nor  ideas." 

But,  says  Lord  Esher,  "what  more  could  the  most  exacting  reformer  demand 
from  a  Second  Chamber?"  The  Influence  of  King  Edward  and  Other  Essays, 
pp.  61-62  (London,  1915). 

'The  proposal  of  indirect  election,  says  Professor  Ramsay  Muir,  "is  radically 
vicious.  County  Councils  were  not  designed  as  electoral  but  as  administrative 
bodies.  It  is  highly  important  that,  so  far  as  possible,  their  members  should 
be  elected  solely  on  the  ground  of  their  fitness  for  their  work,  and  not  on  the 
ground  of  their  opinions  on  national  politics,  which  can  have  nothing  to  do 
with  their  work.  Hitherto  party  politics  have  been  largely  kept  out  of  these 
elections,  or,  at  the  most,  have  only  been  a  secondary  consideration.  .  .  . 
The  electoral  function  of  the  County  Council  would  come  to  outweigh  the  ad- 
ministrative. .  .  .  The  candidates  of  each  side  for  the  Second  Chamber 
would  be  nominated  by  the  party  caucuses,  and  the  candidates  for  the  County 
Council  would  be  required  to  pledge  themselves  beforehand  to  vote  for  A  or  B. 
Thus  the  malign  influence  of  the  party  caucus  will  be  still  further  extended;  the 
partisan  character  of  the  Second  Chamber  will  be  still  more  accentuated;  and  the 
administrative  efficiency  of  a  series  of  important  public  bodies  will  be  seriously 
impaired.  .  .  .  And  what  applies  to  County  Councils  applies  equally  to 
all  other  methods  of  indirect  election;  for  in  a  country  dominated  by  party  divi- 
sions any  body  which  has  an  electoral  function  imposed  upon  it  will  lie  open  to 
the  same  dangers."  Peers  and  Bureaucrats,  pp.  181-183. 


46 


NEW  CONSTITUTIONS  OF  EUROPE 


The 

Standing 
Conference 
Committee 


Criticism 
by  the 
London 
Nation 


by  the  Commons.  Disagreements  between  the  two  houses 
would  be  referred  to  a  Standing  Conference  Committee 
composed  of  sixty  members  chosen  in  equal  proportions 
from  the  two  houses.  This  Committee  would  sit  in 
secret  and  would  make  its  reports  to  each  of  the  houses. 
A  proposal  from  the  Committee  must  be  rejected  or  ac- 
cepted without  amendment.  If  one  chamber  accepted 
and  the  other  rejected  a  bill,  the  final  decision  would  rest 
with  the  Committee,  acting  by  a  majority  of  three.  In 
other  words,  as  Lord  Haldane  expressed  it  in  the  House  of 
Lords  debate,  the  Bryce  scheme  "proposed  to  get  rid  of 
the  Parliament  Act  and  to  substitute  for  it  power  for  the 
House  of  Commons  to  pass  whatever  measures  it  desired, 
provided  it  could  obtain  a  majority  of  three  on  the  Stand- 
ing Joint  Committee  of  the  two  Houses."1  Reference  to 
the  two  houses  in  joint  and  open  session,  or  a  referendum  on 
the  measure,  or  the  machinery  provided  in  some  of  the  new 
constitutions  were  all  rejected  in  favor  of  the  device  of 
the  so-called  Free  Conference. 

The  debate  in  the  House  of  Lords  in  March,  1921,  showed 
great  solicitude  for  a  virile  second  chamber  but  no  great 
enthusiasm  for  the  Bryce  report.  The  chief  critics  of  the 
report  are  those  whom  the  House  of  Lords  fears.  For  ex- 
ample, the  London  Nation  said : 

Now  we  cannot  imagine  the  country  emerging  from  the  war 
and  finding  the  ultimate  control  of  legislation  given  over  to  a 
small  body  of  elderly  Notables,  elected  and  derived,  peers  and 
commoners,  clerical  and  lay.  We  cannot  even  see  either  House 
surrendering  its  forces  into  such  hands.  Whom  does  the  Bryce 
scheme  satisfy?  Not  the  Conservatives,  who  prefer  the  inde- 
pendent dignity  of  the  House  of  Lords  to  a  Chamber  owing  its 
greater  proportion  to  the  House  of  Commons.  Not,  of  course, 
the  Single  Chamber  men,  who  reject  the  whole  theory  of  the 
need  of  a  bi-cameral  "check"  to  democracy.  Not  the  Radicals, 
who  would  sweep  away  hereditary  peers  and  legislative  bishops, 
and  are  indisposed  to  give  a  casting  vote  in  legislation  to  any 


Parliamentary  Debates  (Lords),  Fifth  Series,  Vol.  XLIV,  col.  706  (March  21, 
1921). 


SECONDARY  CHAMBERS 


47 


body  founded  on  indirect  election  and  nomination.  The  device 
of  the  Free  Conference  is  not  in  itself  an  objectionable  one,  and 
Lord  Bryce  and  his  colleagues  have  come  to  the  sound  view  of 
making  the  Second  Chamber  derive,  in  the  main,  from  the  First. 
Their  mistake  has  been  to  create  too  large  a  body,  and  to  endow 
it  with  undue  powers,  which  in  turn  bring  it  into  conflict  with 
the  representative  principle.  A  Second  Chamber  which  is  the 
creature  of  the  First  cannot  even  indirectly  aspire  to  become  its 
master.  If  a  Second  Chamber  is  deemed  necessary,  we  see  no 
overwhelming  objection  to  giving  it  a  purely  consulting  and 
conciliatory  function.  But  we  see  no  reason  for  endowing  it 
with  votes,  or  if  votes  are  conferred  upon  it,  for  creating  a  larger 
body  than  100  or  120  members,  chosen  mainly  from  the  House 
of  Commons,  but  on  a  proportional  system.  Such  a  Second 
Chamber  would  never  be  able  to  upset  the  choice  of  the  people, 
for  under  the  method  of  proportional  representation,  the  major- 
ity in  a  Joint  Session  would  almost  always  be  of  the  same  party 
as  the  majority  in  the  House  of  Commons,  though  the  strength 
of  that  majority  might  be  reduced.1  Therefore  the  element  of 
conflict  is  eliminated.  Under  the  Bryce  scheme  the  conflict 
remains,  but  is  masked  by  the  intervention  of  the  Joint  Com- 
mittee. This  body  will  move  inevitably  towards  compromises, 
and  the  House  of  Commons,  deprived  of  the  power  of  reasserting 
its  full  original  will,  is  automatically  reduced  to  the  alternative 
of  submission  or  a  total  shipwreck  of  its  plans,  maybe  of  the 
chief  work  of  a  session  or  the  issue  of  a  great  electoral  conflict. 

JIn  its  issue  of  July  18,  1914,  The  Nation  suggested  the  following  plan  for  the 
reform  of  the  House  of  Lords: 

"We  would,  therefore,  invite  the  Government  and  the  Liberal  Party  to  follow 
the  general  example  of  modern  States,  and  to  set  up  a  small  Second  Chamber, 
sharply  contrasted  with  the  mere  undistinguished  volume  of  the  House  of  Lords. 
This  would  conveniently  consist  of  100  members,  elected  by,  but  not  from,  the 
House  of  Commons.  The  latter  course  would  lower  the  new  Chamber  to  the 
level  of  a  Committee  of  the  Commons,  and  might  therefore  be  treated  as  an  eva- 
sion of  the  preamble  of  the  Parliament  Act.  Such  a  Senate  would  be  a  Rump 
Parliament  rather  than  a  fresh  organ  of  political  thought  and  action,  and  would 
therefore  be  almost  useless  for  the  special  purposes  of  revision  and  reconsidera- 
tion to  which  we  would  invite  it.  The  Second  Chamber  would  properly  include 
the  Lord  Chancellor,  the  ex-Lord  Chancellor,  and  the  Law  Lords  as  ex  qfficio 
members,  and  its  non-partisan  character  would  free  the  latter  class  from  the 
repressed  and  shadowed  existence  which  they  lead  in  the  House  of  Lords.  An 
element  of  variety  and  distinction  could  also  be  secured  by  adding  to  the  100 
elected  members  a  small  quota  of  nominated  Senators,  chosen  either  by  the 
Executive  or  by  the  Chamber  itself.  But  the  number  of  elected,  nominated, 
and  ex  officio  members  should  not  exceed  120." 

Under  a  system  that  provided  for  a  joint  session  "between  a  Second  Chamber 
so  constituted  and  the  House  of  Commons,  the  elected  majority  in  the  latter 
House  could  only  have  been  once  disturbed  since  1837.  This  was  in  1847,  when 
the  Liberals  had  only  a  majority  of  one  in  the  Commons.  Under  this  scheme  it 
would  have  been  turned  into  a  Conservative  majority  of  six — an  exception  which 
may  easily  be  held  to  prove  the  rule." 


Proposed 
Chamber  is 
too  large 
and 
powerful 


48 


NEW  CONSTITUTIONS  OF  EUROPE 


The 

Bryce 

report 

seeks 

analogies 


Even  finance,  the  historic  right  of  the  Commons,  seems  to  us 
to  be  held  under  the  Bryce  scheme  by  a  single  strand.  The 
Conference  may  attack  it  in  detail,  eviscerate  it,  or  truncate  it. 
This  is  to  ignore  the  effort  of  1906  to  1914  to  reintegrate  the 
democratic  power  and  secure  it  against  future  encroachments 
by  the  Lords.  Not  to  such  issues  will  the  after-war  nation  be 
touched,  when  once  it  resumes  the  broken  thread  of  its  political 
life."1 

In  the  Bryce  report  constitutional  theory  and  practice 
in  other  countries  are  cited  as  showing  that  only  a  few  un- 
important governments,  by  taking  the  risk  of  a  unicameral 
legislature,  fail  to  allow  an  appeal  from  "Philip  drunk  to 
Philip  sober."  And  this  argument  for  the  check  of  one 
house  against  the  other  is  reinforced  by  reference  to  the 
absence  in  England  of  the  check  of  a  written  constitution. 
As  the  Earl  of  Selborne  recently  said  in  the  House  of 
Lords:  "In  this  country  alone  of  all  civilized  countries 
could  a  minority  enact  these  things  [the  revolutionary 
program  of  a  Labor  Government]  under  the  forms  of 
the  Constitution  and  against  the  wish  of  the  majority. 
Here  alone  can  the  fundamental  basis  of  society  or  the 
whole  of  our  Constitution  be  changed  by  the  same  process 
as  is  applied  to  the  passage  of  a  Drainage  Act."2  These 
considerations,  however,  overlook,  it  would  seem,  funda- 
mental differences  in  the  whole  legislative  process  in  Eng- 
land as  compared  with  most  other  countries.  In  the 

lThe  Nation  (London),  May  4,  1918. 

^Parliamentary  Debates  (Lords),  Fifth  Series,  Vol.  XLIV,  col.  694  (March 
21,  1921).  This  debate  was  of  great  interest,  as  the  following  excerpts  show: 

The  Earl  of  Selborne:  "I  want  to  put  the  matter  before  your  Lordships  and 
the  country  in  the  bluntest  possible  form,  and  I  do  not  think  that  I  am  guilty 
of  the  least  exaggeration  when  I  say  that  all  that  has  been  done  in  Russia  to 
destroy  the  constitution,  the  liberty,  and  the  property  of  the  people,  could  be 
done  in  England  under  the  forms  of  the  Parliament  Act,  some  of  it  in  one  session, 
all  of  it  within  the  space  of  a  little  more  than  two  years." 

Viscount  Bryce:  "The  problem  is  a  double  one.  It  is  a  problem  of  the  powers 
which  have  to  be  given  to  the  reconstituted  House,  and  of  the  method  of  con- 
stituting that  House.  These  two  questions  are  closely  interconnected.  Lord 
Selborne  observed  that  there  ought  to  be  large  powers.  I  agree  with  him  in 
thinking  that  there  is  no  use  in  having  a  Second  Chamber  unless  you  give  it 
substantial  powers;  but  it  is  to  be  remembered  that  the  more  powers  you  give, 
the  more  popular  must  be  the  composition  of  the  Chamber.  You  will  not  sue- 


SECONDARY  CHAMBERS 


49 


United  States,  for  example,  there  is  a  deplorable  lack  of 
centralization  of  control  over  the  process  of  legislation. 
Depending  upon  the  strength  of  his  personality  and  his 
party  position,  the  President  exercises  a  more  or  less  ex- 
ternal, but  on  occasion  none  the  less  powerful,  influence. 
As  between  the  two  coequal  houses,  at  any  rate,  he  is,  in 
important  law-making,  the  principal  focus  of  unity  that 
exists.  Moreover,  strange  as  it  may  seem,  although  the 
constitution  vests  in  him  "the  executive  power  of  the 
United  States,"  it  is  chiefly  upon  his  success  in  legislative 
matters  that  he  is  held  to  accountability  by  the  people. 
Apart  from  this  changeful  and  somewhat  extra-constitu- 
tional control  of  the  President,  there  is  in  neither  house  of 
Congress  any  large  degree  of  power  and  responsibility  with 
respect  to  a  program  of  legislation.  Indeed,  one  can 
scarcely  imagine  legislative  processes  that  would  offer 
greater  contrast  than  those  of  England  and  the  United 
States.  The  methods  by  which  and  the  conditions  under 


Defect  in 
analogy  of 
United 
States 


ceed  in  having  any  considerable  powers  allotted  to  a  Second  Chamber  unless 
there  is  a  considerable  popular  element  in  the  composition  of  the  Chamber,  in 
order  to  make  sure  that  it  represents  adequately  what  I  may  call  the  best  delib- 
erate, popular  sentiment.  .  .  . 

" .  .  .  a  Second  Chamber  which  is  to  be  successful  and  is  to  win  the  con- 
fidence of  the  country  must  not  be  a  Party  body.  It  should  not  be  a  body  com- 
posed in  such  a  way  as  to  contain  a  permanent  majority  governed  by  Party 
feeling  or  subservient  to  Party  organization.  It  must  be  a  body  in  which  every 
Party  can  have  representation  and  every  type  of  view  can  be  freely  and  fairly 
stated.  Lastly,  a  Second  Chamber  ought  to  possess,  if  possible,  the  largest 
measure  of  moral  authority.  By  moral  authority  I  mean  besides  the  legal 
authority  which  may  be  vested  in  it,  be  that  greater  or  smaller,  the  influence 
exerted  on  the  mind  of  the  nation  which  comes  from  the  intellectual  authority 
of  the  persons  who  compose  the  Chamber,  from  their  experience,  from  their 
record  in  public  life  and  from  the  respect  which  their  characters  and  their  ex- 
perience inspire.  If  an  Assembly  possesses  that  moral  authority  in  large  meas- 
ure, its  legal  powers  need  not  be  quite  so  extensive  as  they  might  otherwise 
have  to  be. 

Viscount  Haldane:  If  "the  Government  were  to  propose  a  measure  for  enlarg- 
ing the  powers  of  the  House  of  Lords  and  correspondingly  curtailing  the  powers 
of  their  own  representatives,  what  would  be  the  effect?  I  think  the  effect  would 
be  that  you  would,  at  last,  have  one  among  a  number  of  things  which  would 
stir  that  democracy,  and  which  would  bring  about  the  very  state  of  things  which 
you  want  to  avoid.  The  one  thing  about  which  the  Englishman  is  really  sensi- 
tive is  the  violation  of  those  traditional  usages,  which  in  a  vague  way  he  under- 
stands, and  which  he  always  has  more  or  less  in  his  mind.  .  .  . 

"If  you  want  to  bring  forward  a  Labour  majority  I  know  of  no  better  plan 
than  that  of  proposing  to  put  restrictions  on  the  House  of  Commons." 


Defect  in 
analogy 
of  France 


Role  of 
the  French 
Senate 


50         NEW  CONSTITUTIONS  OF  EUROPE 

which  legislative  proposals  are  introduced  into  and  carried 
through  the  American  House  of  Representatives  are  so 
utterly  different  from  those  obtaining  in  the  House  of 
Commons  that  arguments  for  the  need  of  a  second  cham- 
ber in  the  United  States  can  be  applied  to  the  English 
situation  only  by  ignoring  striking  differences  of  impor- 
tance. 

Or  take  the  situation  in  France,  where  the  constitutional 
system  more  nearly  approximates  that  of  England.  The 
French  Senate  acts  as  frequently  in  support  of  the  Minis- 
try as  against  it;  the  Ministry  sometimes  uses  the  Senate 
to  restore  appropriations  refused  by  the  chambers.  Under 
the  operation  of  Lord  Bryce's  scheme,  such  an  eventuality 
in  England  would  be  scarcely  thinkable.  The  French 
Ministry  occupies  no  such  position  toward  the  Chamber 
of  Deputies  as  does  the  British  Ministry  toward  the  House 
of  Commons,  for  the  simple  reason  that  it  cannot  dissolve 
the  Chamber  without  the  consent  of  the  Senate;  which 
means  that  the  upper  chamber,  not  the  Ministry,  has  the 
power  of  dissolution.  This  is  a  point  of  no  mean  signifi- 
cance. The  Bryce  report  does  not  argue  for  a  second 
chamber  vested  with  power  to  interpose  itself  between  the 
Ministry  and  the  lower  chamber.  It  does  not  contem- 
plate an  emasculated  or  hair-trigger  Ministry  that  may  be 
hurried  out  of  office  over  night,  because,  forsooth,  it  lacks 
the  power  to  seek  its  own  justification  by  appealing  to  the 
electors  to  turn  the  recalcitrant  chamber  out.  Such  an 
arrangement  cannot  fail  to  weaken  the  Ministry,  to 
strengthen  both  houses  as  against  the  Ministry,  to  approxi- 
mate the  system  of  fixed  terms  for  legislative  bodies,  to 
decentralize  responsibility — in  a  word,  to  dilute  the  es- 
sential virtues  of  cabinet  responsibility  and  parliamen- 
tary government. 

It  may  reasonably  be  argued  that  the  instability  of  cabi- 
net government  in  France  is  due  to  the  existence  of  a 
second  chamber  vested  with  this  power  over  dissolution. 


SECONDARY  CHAMBERS 


51 


But  it  certainly  cannot  be  argued  that  a  second  chamber 
that  is  not  vested  with  such  power  is  necessary  simply 
because  France  has  a  second  chamber.  The  French 
Senate  does  not  act  as  a  check  upon  the  Deputies;  as  the 
case  may  be,  it  acts  as  a  check  upon,  or  aid  to,  a  Ministry 
pitted  against  the  Deputies.  It  is,  in  short,  a  stabilizer 
of  ministerial  instability.  The  multiple  party  system  and 
the  French  Senate's  failure  to  exercise  its  power  over 
dissolution  are  responsible  for  the  kaleidoscopic  changes 
of  cabinets.  But  it  is  open  to  question  whether  the  sanity 
and  wisdom  of  French  law  and  policy  may  properly  be 
referred  to  the  check  of  this  second  chamber. 

In  any  scheme  of  government  the  arguments  for  a  second 
chamber  can  be  tested  only  by  considering  the  legislative 
process  as  a  whole.  It  is  not  solely  a  matter  of  compelling 
a  first  chamber  to  hasten  slowly.  It  is  also  a  matter  of 
how  slowly  and  maturely  the  lower  chamber  has  in  the 
first  instance  been  forced  to  proceed.  In  this  connection 
an  English  authority  on  constitutional  law  has  said: 

This  is  an  aspect  of  the  case  which  is  worth  dwelling  upon 
for  it  goes  far  to  limit  the  application  of  the  theory  that  Upper 
Houses  are  a  check  upon  hasty  legislation.  That  theory  has 
found  expression  in  the  writings  of  all  apologists  for  a  dual  legis- 
lature— Montesquieu,  Hamilton,  Story,  Tocqueville,  Laboulaye, 
and  Esmein.  Now,  it  is  a  curious  fact — not,  I  believe,  hitherto 
remarked  upon — that  every  one  of  these  writers  begins  with  the 
assumption  that  the  executive  and  the  legislature  are  separate — 
an  assumption  which  was,  and  is,  true,  or  approximately  true, 
of  the  countries  with  which  they  were  most  concerned.  They 
assume  that  the  Lower  House  has  an  unrestricted  initiative  in 
legislation,  independently  of  the  Ministry,  and  that  it  is  the 
Ministry,  quite  as  much  as  the  people,  which  required  to  be  pro- 
tected against  the  Lower  House. 

An  unrestricted  initiative  calls  for  an  unrestricted  veto,  and 
a  chamber  which,  without  the  sense  of  collective  responsibility 
possessed  by  a  Cabinet,  without  its  continuity  of  programme,  its 
trained  draughtsmanship,  its  Treasury  experts,  can  initiate 
legislation  and  carry  it  through — as,  for  example,  the  Lower 
Houses  in  France  and  America  do — must  be  subject  to  an 
Upper  Chamber  which  may  supply  these  defects. 


Test  of 
argument 
for  a  second 
chamber 


The  English 
process  of 
legislation 


NEW  CONSTITUTIONS  OF  EUROPE 


Law-making 

by 

ministries 


But  with  us  this  unrestricted  initiative  does  not  exist,  because 
our  executive  and  legislature  are  not  separate  in  fact  whatever 
they  may  be  in  law.  There  is  what  I  may  call  a  prior  veto  upon 
the  legislation  of  the  House  of  Commons  in  the  responsibility 
of  the  Cabinet  for  legislation  and  its  consequent  control  of  the 
time  of  the  House,  and,  believe  me,  that  veto  is  no  inconsiderable 
check  upon  the  kind  of  hasty  legislation  which  the  Upper  Cham- 
bers of  foreign  countries  are  designed  to  control.  A  Government 
Bill  is  the  product  of  many  trained  minds:  the  Parliamentary 
draughtsman  sees  that  it  is  dovetailed  into  the  body  of  existing 
statute  law;  the  Treasury  are  called  in  to  consider  what  charges 
upon  the  national  revenue  it  may  involve;  the  departments  are 
consulted  to  advise  what  administrative  duties  it  may  throw 
upon  them.1 

In  continental  countries,  moreover,  ministries  have 
wide  powers  of  collateral  legislation  which  are  seldom  fully 
disclosed  in  the  provisions  of  written  constitutions.  This 
tradition  will  doubtless  be  continued  by  the  governments 
of  the  succession  states.  In  Prussia,  a  Ministry  unable 
to  secure  the  enactment  of  a  statute  could  usually  reach 
the  same  end  by  an  ordinance.2  The  notorious  Article  14 
of  the  Austrian  constitution3  gave  this  power  explicitly; 
but  it  was  a  power  that  was  derived  almost  as  effectively 
by  implication  from  other  constitutions.  In  France,  if 
the  Senate  is  troublesome,  the  Ministry  can  frequently 
resort  to  a  decree  which  can  be  challenged  only  by  an  ad- 
ministrative tribunal.  What  Professor  Dicey  has  called 
the  "rule  of  law"  is  not  without  its  importance  in  connec- 
tion with  the  problem  of  a  second  chamber.  If  it  is  unable 
to  fall  back  upon  administrative  legislation,  a  ministry  is 

1J.  H.  Morgan,  The  Place  of  a  Second  Chamber  in  the  Constitution,  pp.  9-10 
(London,  1910).  Professor  Morgan  points  out  that  this  control  is  a  development 
of  the  nineteenth  century  and  that  the  English  constitution  copied  by  foreign 
countries  is  that  of  the  eighteenth  century.  Under  this  earlier  constitution  the 
Lords  as  frequently  supported  the  Ministry  as  opposed  it.  The  Ministry  could 
carry  on  the  government  independently  of  the  Commons  by  a  civil  service  which 
was  a  fixed,  not  an  annual,  charge.  And  most  of  the  legislation  was  private 
bill  legislation  and  not  public  legislation. 

*Willoughby  and  Rogers,  op.  cit.,  p.  363. 

JFor  the  text  see  ibid.,  p.  377.  The  provision  is  copied  in  the  Japanese  con- 
stitution. 


SECONDARY  CHAMBERS 


53 


more  apt  to  act  with  reference  to  possible  support  or 
opposition  from  the  upper  house.  Such  an  arrangement  is 
not  conducive  to  responsible  government.  As  Professor 
Morgan  has  said: 

A  strong  Upper  House,  in  fact,  everywhere  means  either  a     Strong 
weak  or  a  subservient  executive.     The  exceptions  to  this  rule      second 
are  apparent  rather  than  real.     In  France,  the  executive,  al-     chamber 
though,  as  we  have  seen,  possessed  of  considerable  powers  of     makes  weak 
independent  legislation,  is  singularly  weak  in  the  face  of  the     ministry 
Chamber  of  Deputies,  which,  contrary  to  all  English  precedent, 
exercises  an  initiative  in  finance  independently  of  the  executive. 
The  deputies  can,  in  fact,  turn  the  Cabinet's  Finance  Bills,  like 
any  other  Bill,  inside  out.     Not  infrequently,  therefore,  the 
Cabinet  looks  to  the  Senate  to  support  it  against  the  Chamber 
of  Deputies  by  restoring  appropriations  and  taxes  which  the 
latter  has  omitted  or  reduced.     A  very  similar  condition  of 
affairs  prevailed  at  one  time  in  Prussia.     In  the  German  Empire 
the  Upper  Chamber  not  only  supports  the  executive,  it  is  iden- 
tical with  it;  so  much  so,  indeed,  that  Bismarck  always  treated 
the  demand  of  the  German  Liberals  for  a  Cabinet  responsible 
to  the  Reichstag  as  absolutely  incompatible  with  the  continued 
existence  of  the  Upper  House.     If  we  turn  to  the  English  col- 
onies, we  shall  find  that  Upper  Houses  are  only  strong  in  pro- 
portion  as   Cabinets   are   weak — the   English   tradition,   now 
operative  for  something  like  fifty  years,  that  a  Government 
which  cannot  command  a  majority  or  secure  the  passage  of  its 
egislation,  may  dissolve,  has  not  equal  force. 

And  Professor  Morgan  summarizes  his  conclusion  as 
follows : 

Whereas  in  our  own  country  the  Government  is  dependent  on     Unique 
the  Lower  House  of  the  Legislature  (the  House  of  Commons),     position  of 
in  foreign  countries  it  is  more  often  dependent  on  the  Upper      House  of 
House,  in  so  far  as  it  is  dependent  on  the  legislature  at  all;  and     Lords 
that,  therefore,  the  large  powers  accorded  to  the  Upper  House 
in  those  countries  are  more  often  used  to  support  the  Govern- 
ment of  the  day  than  to  oppose  it.     Now,  with  us,  exactly  the 
reverse  is  the  case,  and  the  problem  which  confronts  us  is  that 
of  an  Upper  House  able,  willing,  and  determined  to  bring  the 
Government  of  the  day  to  a  standstill.     In  that  respect  our 
problem  is  unique,  and  the  pretensions  of  our  Upper  House  are 
both  higher  and  more  dangerous  than  those  advanced  by  any 
other  country  living  under  a  constitutional  system.1 

'Morgan,  op.  cit.,  pp.  14-15. 


Relation  of 
problem  of 
cabinet 
dominance 


54 

The  English  Cabinet  is  the  most  powerful  and  indepen- 
dent responsible  Ministry  in  the  world.  It  has  been  able 
to  exert  a  very  complete  control  over  the  House  of  Com- 
mons. Not  the  least  of  its  levers  has  been  the  possibility 
that  it  might  order  a  dissolution.  The  danger  of  a  strong 
second  chamber  in  England  is  that  the  power  of  dissolution 
might  be  transferred  in  whole  or  in  part  from  the  Cabinet 
to  the  Lords.  That  would  destroy  the  balance  of  the  con- 
stitution. There  may  well  be  strong  arguments  in  favor  of 
abolishing  a  fairly  uncontrolled  cabinet  dictatorship,  but 
this  may  be  accomplished  by  measures  short  of  the  creation 
of  a  strong  second  chamber.  Cabinet  dominance,  with  the 
ever- present  possibility  of  emergency  action  by  the  House  of 
Commons,  has  much  to  commend  it  in  comparison  with  the 
possibility  of  a  powerfully  reinvigorated  upper  chamber. 

The  manner  in  which  the  bicameral  arrangements  of 
the  new  constitutions  will  work  is,  of  course,  highly  con- 
jectural.1 Almost  without  exception,  as  has  been  said, 
the  idea  of  a  second  chamber  equal  in  strength  to  the 
lower,  has  found  little  favor.  Every  effort  has  been  made 
to  avoid  the  evils  indicated  in  Benjamin  Franklin's  descrip- 
tion of  a  bicameral  legislature:  "It  is  a  cart  with  a  horse 
hitched  to  each  end  and  both  pulling  in  opposite  direc- 
tions." But  how  effectively  the  cart  will  be  pulled  and  in 
what  direction  remains  to  be  seen. 


Professor  Morgan  ventured  to  prophesy  concerning  the  workings  of  the 
Parliament  Act.  "I  think,"  he  said,  "that  it  will  enormously  increase  the 
legislative  activity  of  the  House  of  Lords;  that,  if  conscientiously  worked,  it 
will  give  it  a  prestige  of  a  more  practical  and  less  superstitious  kind  than  it  has 
ever  enjoyed  before."  The  Lords  will  be  able  to  transform  a  Bill  and  send  it 
back,  whereas,  the  Commons,  by  the  terms  of  the  Parliament  Act,  only  repass 
the  same  measure.  "During  the  whole  of  the  statutory  two  years,  the  House 
of  Lords  will  be  the  centre  and  focus  of  all  the  agitation  in  the  country  against 
the  particular  Bill,  the  Areopagus  to  which  every  interest  affected  will  look  for 
consideration  of  its  grievance."  Op.  cit.,  pp.  21-22. 

The  adjournment  of  politics  during  the  war  and  the  abandonment  of  party 
for  coalition  government  prevent  any  estimate  of  the  correctness  of  Professor 
Morgan's  prophecy.  The  same  reasoning  would  suggest  that  in  the  succession 
states  the  second  chambers,  uninfluenced  by  the  necessity  of  compromise  in 
order  to  reach  an  agreement,  will  be  active  in  amending  bills  and  shifting  the 
responsibility  to  the  lower  house  or  the  executive. 


CHAPTER  IV 
SEGMENTATION  AND  FEDERATION 

THE  segmentation  of  Empires  and  the  decisions  of  the 
Peace  Conference  created  a  number  of  new  small  states. 
This  reversal  of  the  apparent  tendency  of  political  units 
to  coalesce  in  great  composite  organizations  is  probably 
of  greatest  importance  in  international  matters.  It  is 
fairly  obvious  that  the  fewer  the  members  of  the  commun- 
ity of  states,  the  fewer  will  be  the  possibilities  of  friction. 
International  law  depends  for  its  validity  upon  the  agree- 
ment, tacit  or  otherwise,  of  sovereign  states.  Its  possibil- 
ity for  growth  is  lessened  by  an  increase  in  the  number  of 
states  whose  agreement  is  necessary.  Divide  et  impera 
is  not  a  maxim  appropriate  to  the  end  of  world  organi- 
zation. There  is,  indeed,  something  of  inconsistency 
between  increasing  the  membership  of  the  international 
community  and  at  the  same  time  promoting  a  League  of 
Nations  and  diplomacy  by  conference.  Treitschke  ob- 
jected to  small  states  on  the  ground  that  "  weakness  is  the 
most  reprehensible  and  the  most  contemptible"  of  political 
sins;  but  apart  from  this  callous  count  in  the  indictment, 
serious  objections  may  be  raised.  Belgium  and  Serbia 
are  never-to-be-forgotten  examples  of  the  opportunities 
that  the  small  states  offer  for  aggression.  Economic 
exploitation  is  more  insidious,  more  frequent,  and  in  many 
cases  just  as  disastrous  as  avowed  political  conquest. 
The  new  states  in  Europe  will  be  politically  and  economi- 
cally jealous  of  one  another.1  For  economic  purposes 

1 "  Now  that  they  [the  little  nations]  have  achieved  great  success,  dazzling  suc- 
cess, almost  blinding  success,  there  is  a  real  danger  of  their  emulating  the  faults 
of  great  countries.  .  .  .  The  spirit  of  expansion  is  beginning  to  possess 

55 


Interna- 
tional 
effects  of 
numerous 
small  states 


Economic 
exploitation 


56 


NEW  CONSTITUTIONS  OF  EUROPE 


Pettiness  of 
civic  life 


Value  of 
small   states 


larger  units  would  be  advisable:  tariff  walls  could  be 
raised  and  the  integration  of  rich  and  poor  sections  would 
mean  little  loss  to  the  former  and  much  advantage  to  the 
latter. 

"In  a  small  state,"  moreover,  as  one  very  sympathetic 
critic  has  summarized  the  case,  "civic  life  must  necessarily 
be  petty,  humble,  unambitious.  The  game  of  politics 
must  center  around  small  issues,  and  thus  circumscribed 
in  scope,  loses  the  ethical  value  of  scale."  A  small  state 
"can  never  be  a  source  of  that  triumphant  pride  and  hope 
which  lifts  citizenship  up  to  the  plane  of  heroism."  Sooner 
or  later  the  small  states  must  go.  "They  will  be  absorbed 
in  larger  political  aggregates.  They  will  follow  the  line 
of  historical  development  which  has  created  the  large 
modern  states  of  Europe  out  of  a  mosaic  of  tiny  and  war- 
ring fiefs.  And  nobody  will  regret  their  demise,  least  of 
all  the  citizens  themselves."  It  is  even  contended  "that 
patriotism  in  its  fullest  sense  is  only  possible  to  large 
nations.  Great  states  march  on,  little  states  mark  time. 
.  .  .  Guided  by  the  hand  of  God,  the  mighty  organs 
which  are  the  chosen  vessels  of  the  highest  culture  upon 
earth  take  up,  one  after  another  in  due  sequence,  each 
item  of  their  sacred  and  providential  programme."1 

On  the  other  hand,  it  must  be  recognized  that  small 
states  have  distinct  values.  The  almost  fulsome  admira- 
tion which  was  given  them  at  the  outbreak  of  the  war  was 
due  to  a  very  natural  sentiment  against  the  furious  de- 
spoilment of  Belgium  and  Serbia,  and  to  the  necessity 
of  presenting  an  alternative  to  the  ruthlessness  of  the 
Prussian  political  philosophy  that  contemned  them.  Per- 


them.  It  is  the  most  fatal  error  that  any  people,  great  or  small,  can  possibly 
make.  Their  strength  to-day  and  their  strength  for  all  time  is  in  serving  the 
liberty  of  their  own  race."  Mr.  Lloyd  George,  Address  at  the  Welsh  National 
Festival  Dinner  (March  3,  1919).  Two  years  later,  with  particular  reference  to 
Poland,  Mr.  Lloyd  George  remonstrated  with  the  children  of  the  Peace 
Treaty  for  breaking  up  the  crockery. 

JH.  A.  L.  Fisher,  The  Value  of  Small  State*,  pp.  4-5  (Oxford,  1914). 


SEGMENTATION  AND  FEDERATION        57 

haps  also  the  judgment  of  students  is  still  influenced 
by  the  glorious  although  temporary  brilliance  of  the 
ancient  city-states  and  by  the  fact  that  three  small  com- 
munities— Holland,  Switzerland,  and  Scotland — saved 
the  principle  of  self-government  from  ultimate  denial. 
Indeed  the  view  has  been  expressed  that  "almost  every- 
thing which  is  most  precious  in  our  civilization  has  come 
from  small  states,  the  Old  Testament,  the  Homeric  poems, 
the  Attic  and  the  Elizabethan  drama,  the  art  of  the  Italian 
Renaissance,  the  common  law  of  England.  Nobody  needs 
to  be  told  what  humanity  owes  to  Athens,  Florence, 
Geneva,  or  Weimar.  The  world's  debt  to  any  one  of 
these  small  states  far  exceeds  all  that  has  issued  from  the 
militant  monarchies  of  Louis  XIV,  of  Napoleon,  of  the 
present  Emperor  of  Germany."1 

Even  so,  from  the  selfish  viewpoint  of  the  student  of 
government,  the  creation  of  new  political  entities  is  to 
be  welcomed.  The  more  democracies  there  are  at  work, 
the  more  materials  he  will  have  for  a  study  of  different 
phases  of  popular  government.  There  may  be,  as  Lord 
Bryce  says,  most  important  "results  within  the  next  thirty 
years  of  setting  up  democracies  in  countries  that  have 
heretofore  formed  part  of  the  Russian  and  Austro- 
Hungarian  monarchies;  or  (to  take  a  still  more  startling 
case)  of  trying  the  experiment  of  popular  government  in 
India,  in  China,  in  Russia,  in  Egypt,  in  Persia,  in  the 
Philippine  Islands.  If  any  of  the  bold  plans  of  social 
reconstruction  now  in  the  air  are  attempted  in  practice 


Wisher,  op.  ciL,  p.  9.  There  is  a  well-known  passage  in  which  Aristotle  gives 
his  opinion  of  the  ideal  state.  He  is  much  concerned  about  the  question  of  size. 
"  For  law  is  order,  and  good  law  is  good  order;  but  a  very  great  multitude  cannot 
be  orderly :  to  introduce  order  into  the  unlimited  is  the  work  of  a  divine  power — 
of  such  a  power  as  holds  together  the  universe.  .  .  .  To  the  size  of  states 
there  is  a  limit,  as  there  is  to  other  things,  plants,  animals,  implements;  for  none 
of  these  retain  their  natural  power  when  they  are  too  large  or  too  small,  but 
they  either  wholly  lose  their  nature,  or  are  spoiled."  When  a  state  is  composed 
of  too  many,  it  is  "almost  incapable  of  constitutional  government.  For  who 
can  be  the  general  of  such  a  vast  multitude,  or  who  the  herald,  unless  he  have 
the  voice  of  a  Stentor?"  Politics,  VII,  4  (Jowett's  translation). 


Their   world 
contribu- 
tions 


Sources  for 
study  of 
popular 
government 


they  will  apply  new  tests  to  democratic  principles  and 
inevitably  modify  their  working."1 

Moreover,  small  states  have  the  same  value  that  federal 
states  have  in  providing  opportunities  for  political  exper- 
iment; and,  as  will  be  seen  later, the  new  states  of  Europe, 
in  their  constitutional  arrangements,  electoral  devices, 
and  canons  of  social  justice,  have  not  been  content  to  fol- 
low beaten  paths;  they  have  attempted  invention.  The 
point  is  well  stated  by  the  chief  defender  of  the  small 
states: 

Laboratories         Indeed,  one  of  the  advantages  flowing  from  the  existence  of 
for  social  smaller  states  consists  in  the  fact  that  they  serve  as  convenient 

experiments  laboratories  for  social  experiment — a  point  likely  to  be  appre- 
ciated in  America,  in  view  of  the  great  mass  of  material  for  the 
comparative  study  of  social  and  industrial  expedients  which  is 
provided  by  the  enterprise  of  the  American  state  legislatures. 
Such  experiments  as  woman  suffrage,  or  as  the  state  prohibi- 
tion of  the  public  sale  of  alcoholic  drink,  or  as  a  thoroughgoing 
application  of  the  reformatory  theory  of  punishment,  would 
never  be  seriously  discussed  in  large,  old,  and  settled  communi- 
ties, were  it  not  for  the  fact  that  they  have  been  tried  upon  a 
smaller  scale  by  the  more  adventurous  legislatures  of  the  New 
World.  Man  is  an  imitative  animal,  and  a  study  of  such  an 
organ  as  the  Journal  of  Comparative  Legislation  exhibits  the  in- 
creasing uniformity  of  the  problems  which  confront  the  legisla- 


1Modern  Democracies,  Vol.  I,  p.  x.  Lord  Bryce's  opinions  as  to  the  value  of 
small  states  underwent  some  changes.  In  his  book  on  The  Holy  Roman  Empire 
he  was  an  enthusiastic  champion  of  the  big-state  movement;  but  in  1905  he 
lamented  the  fact  that  "the  most  conspicuous  feature  in  the  evolution  of  the 
modern  world  has  been  the  effacement  of  the  smaller  and  the  growth  of  the 
larger  nations  and  nationalities"  with  the  result  that  "local  patriotism,  with 
all  that  diversity  and  play  of  individuality  which  local  patriotism  has  evolved, 
withers  silently  away."  Quoted  by  J.  A.  R.  Marriott,  The  European  Common- 
wealth, p.  145  (Oxford,  1918).  In  Modern  Democracies,  Lord  Bryce  said:  "It 
was  in  small  communities  that  Democracy  first  arose:  it  was  from  them  that  the 
theories  of  its  first  literary  prophets  and  apostles  were  derived :  it  is  in  them  that 
the  way  in  which  the  real  will  of  the  people  tells  upon  the  working  of  govern- 
ment can  best  be  studied,  because  most  of  the  questions  which  come  before  the 
people  are  within  their  own  knowledge.  The  industrial  and  commercial  forces 
which  draw  men  together  into  large  aggregations  seem  to  forbid  the  hope  that 
small  self-governing  units  may  reappear  within  any  period  to  which  we  can  look 
forward.  Yet  who  can  tell  what  may  come  to  pass  in  the  course  of  countless 
years?  War  and  the  fear  of  war  were  the  chief  causes  which  destroyed  the  little 
states.  If  the  fear  of  war  could  be  eliminated  there  might  be  some  chance  of 
their  return."  Vol.  II,  pp.  444-445. 


SEGMENTATION  AND  FEDERATION        59 


tor,  and  the  increasing  monotony  of  the  solutions  which  he  finds 
to  meet  them.  All  over  the  world  industrial,  educational,  penal 
legislation  tends  to  conform  to  type.  And  within  limits  the 
tendency  is  the  necessary  and  wholesome  consequence  of  the 
unifying  influence  of  modern  industrial  conditions.  But  our 
enlarged  facilities  for  imitation  present  obvious  dangers,  and 
among  them  the  fatal  temptation  to  borrow  a  ready-made 
uniform  which  does  not  fit.  Small  states  may  fall  into  this  pit- 
fall as  well  as  big  ones,  but  at  least  their  continued  existence 
presents  some  guarantee  for  diversity  of  life  and  intellectual 
adventure  in  a  world  steadily  becoming  more  monotonously 
drab  hi  its  outer  garment  of  economic  circumstance.1 

Manifestly,  however,  the  principal  problem  of  small 
states  arises  from  this  same  "outer  garment  of  economic 
circumstance,"  no  matter  how  drab  may  be  its  appearance. 
In  the  modern  world  small  states  are  seldom  self-sufficient 
economically.  Industrial  Czechoslovakia  and  Austria 
have  need  of  agricultural  Rumania,  Jugoslavia,  and 
even  Hungary.  Units  of  transportation  and  communi- 
cation are  embarrassed  and  impeded  by  the  multiplication 
of  such  artificialities  as  state  boundary  lines.  Countries 
having  no  access  to  the  sea  are  grievously  handicapped 
in  the  struggle  for  material  prosperity.  And  however 
contemptuous  one  may  be  toward  a  policy  of  materialism 
that  is  pursued  as  an  end  in  itself,  one  must  recognize 
that  some  degree  of  material  prosperity  is  indispensable 
to  a  realization  of  the  "good  life"  in  almost  any  form. 

In  his  essay  on  "  The  Action  of  Centripetal  and  Centri- 
fugal Forces  on  Political  Constitutions"  Lord  Bryce 
enumerated  a  number  of  factors  that  draw  men  or  groups 
of  men  together  in  an  organized  community  and  keep 
them  in  union.  Among  the  most  important  of  these 
factors  he  mentioned  trade,  a  common  law  and  system  of 
courts,  religion,  and  a  system  of  education  that  inculcates 
common  ideas  and  aspirations.2  The  absence  of  some  of 
these  factors  in  certain  of  the  pre-war  states  of  Europe 

'Fisher,  The  Value  of  Small  States,  pp.  17-18. 

2Bryce,  Studies  in  History  and  Jurisprudence,  p.  216  (New  York,  1901). 


Economic 
problems    of 
small   states 


Centripetal 
and 

centrifugal 
forces 


60 


NEW  CONSTITUTIONS  OF  EUROPE 


Formation 
of  the 
Little 
Entente 


Its  future 
development 


unquestionably  operated  centrifugally.  The  existence  of 
others,  and  especially  of  the  economic  factor,  will  undoubt- 
edly serve  to  draw  some  of  the  small  states  into  a  closer 
union  than  their  complete  independence  implies. 

Already,  for  example,  the  Petite  Entente  of  Czechoslo- 
vakia, Jugoslavia,  and  Rumania1  appears  to  have  emerged 
into  "something  closely  resembling  a  Great  Power."2 
"So  far  from  following  any  aggressive  aims,  the  Little 
Entente  exists  to  preserve  peace  on  a  basis  of  the  new 
territorial  status  quo  and  the  sanctity  of  treaties.  It  ex- 
ists as  a  check  upon  Hungary's  military  and  political 
ambitions,  and  is  resolved  to  prove  to  her  by  its  members' 
solidarity  the  utter  hopelessness  of  recovering  her  lost 
provinces.  It  regards  the  House  of  Hapsburg  and  Magyar 
monarch  ism  as  identified  with  reaction  and  subversion. 
.  .  .  Each  of  its  members  asks  nothing  better  than  to 
continue  in  close  accord  with  the  Western  nations,  with- 
out whom  its  unity  and  independence  could  not  have  been 
achieved.  But  not  even  from  them  is  any  one  of  the  three 
prepared  to  accept  dictation  in  matters  such  as  Hungary's 
frontiers  or  the  regime  of  the  Danube,  which  they  re- 
gard as  vital  to  their  own  development.  They  are  bent 
upon  economic  consolidation  and  freer  mutal  intercourse, 
and  intend  to  provide  the  proof  that  the  break-up  of 
Austria-Hungary  does  not  involve  anarchy  or  Balkan - 
ization."3 

It  is  impossible  to  say  whether  the  Little  Entente  will 
ever  grow  into  a  true  and  effective  confederation  of  the 
small  states  of  central  Europe.  Austria  was  drawn 
partially  into  the  group  by  the  Treaty  of  Lana  which  was 

JThe  Little  Entente  rests  upon  a  series  of  bilateral  agreements.  The  agree- 
ment between  Czechoslovakia  and  Jugoslavia  was  signed  August  14,  1920;  that 
between  Czechoslovakia  and  Rumania,  April  23,  1921;  and  that  between  Jugo- 
slavia and  Rumania,  June  7,  1921. 

»D.  Thompson  and  M.  W.  Fodor,  "The  Menace  of  the  Little  Entente,"  The 
New  Republic,  April  19,  1922. 

»R.  W.  Seton-Watson,  "The  Little  Entente,"  The  New  Europe,  October  14, 
1920. 


SEGMENTATION  AND  FEDERATION       61 


concluded  with  Czechoslovakia  early  in  1922.1  And 
Poland  was  drawn  in  to  the  extent  of  agreeing  to  stand 
with  the  Little  Entente  "  both  politically  and  economically  " 
at  the  Genoa  Conference  in  the  spring  of  1922.  But  Mr. 
Benes,  Prime  Minister  of  Czechoslovakia  and  foremost 
spirit  of  the  Entente,  has  been  quoted  as  being  "opposed 
to  either  a  political  or  economic  federation  of  these  states" 
or  even  to  a  customs  union  or  a  free  trade  agreement;  he 
favors  only  "the  consummation  of  political  and  economic 
treaties  between  state  and  state,  such  as  the  one  just  con- 
cluded between  Czechoslovakia  and  Austria."2  Certainly 
there  are  many  centrifugal  forces  that  will  operate  against 
the  possible  transformation  of  the  Little  Entente  into  a 
close  confederation. 

There  have  been  indications  also  that  the  Baltic  States 
desire  to  modify  their  separatist  status  by  acting  jointly 
in  respect  to  certain  matters  of  common  concern.  Thus  in 
March,  1922,  a  treaty  was  signed  between  Finland,  Es- 
thonia,  Latvia,  and  Poland  on  the  basis  of  "the  community 
of  their  mutual  political  and  economic  interests."  The 
treaty  provided  for  arbitration  of  disputes  between  the 
signatory  states,  the  negotiation  of  administrative  and 
economic  agreements,  the  protection  of  minorities,  a 
"benevolent  attitude"  by  the  other  states  if  one  of  them 
is  attacked,  and  immediate  consultation  in  such  circum- 
stances "as  to  measures  to  be  undertaken."3 

Whatever  may  be  the  ultimate  result  of  such  arrange- 
ments as  the  Little  Entente  and  the  Baltic  States'  Treaty, 
they  at  least  signify  the  early  recognition  of  a  necessity 
for  striking  some  kind  of  compromise  between  national- 
istic aspirations  for  complete  independence  and  the  sternly 


'Austria  agreed  to  execute  the  Treaties  of  St.  Germain  and  Trianon  to  the 
full  extent,  to  observe  neutrality  in  case  Czechoslovakia  were  attacked,  and  to 
prevent  anti-Czech  irredentist  organizations  on  Austrian  territory. 

'Interview  in  The  Manchester  Guardian  Weekly.  March  31,  1922. 

'"The  Baltic  States'  Treaty  of  Warsaw,"  Current  History,  June,  1922,  p.  470. 


The  Baltic 
States' 
Treaty  of 
1922 


NEW  CONSTITUTIONS  OF  EUROPE 


The  federal 
idea  in 
Germany 
and  Austria 


Prussian 
preponder- 
ance in 
German 
federalism 


practical   considerations   that   urge   concerted   action   in 
some  matters  of  common  concern. 

Of  the  European  states  engaged  in  the  World  War  the 
German  Empire  was  the  only  one  with  a  federal  system  of 
government.  The  Austro-Hungarian  Monarchy  operated 
under  a  unique  "dual"  system  that  was  far  from  being 
federal  in  character.1  Indeed  federalism  had  been  the 
high  ambition  of  the  non-German  and  non-Hungarian 
nationalities  of  Austria-Hungary  when  the  dual  scheme 
was  agreed  upon  between  the  Germans  of  Austria  and  the 
Magyars  of  Hungary  in  1867;  and  toward  this  ultimate 
goal  some  of  these  "subject"  nationalities  had  never 
ceased  to  aspire.  It  is  a  curious  though  not  inexplicable 
fact  that  in  the  gray  twilight  of  military  defeat  and 
disillusionment  the  federal  idea  waned  in  Germany,  while 
in  Austria,  although  the  races  that  had  formerly  advocated 
federalism  were  now  organized  into  new  states,  the  federal 
idea  gained  great  headway  among  a  population  that  was 
almost  exclusively  German.2 

The  problem  of  federalism  in  the  new  Germany  was 
inextricably  interwoven  with  the  problem  of  Prussia's 
preponderance  in  the  old  Empire.3  If  federalism  was  to 
be  preserved,  how  could  this  preponderance  be  weakened 
or  destroyed?  If  a  unitary  state  was  to  be  created,  how 
could  Prussia,  with  four-sevenths  of  the  population  of  the 
country,  be  prevented  from  controlling  the  entire  policy 
of  the  Reich?  These  were  the  most  difficult  questions 
that  the  makers  of  the  German  constitution  faced.  They 
were  debated  at  great  length  and  with  great  passion.4 
Naturally  the  lesser  states  held  Prussia  especially  respon- 
sible for  the  catastrophe  that  had  fallen  upon  them  all. 

^e  below,  pp.  241  ff. 

"See  below,  pp.  254,  255. 

"See  below,  pp.  213  ff. 

4For  a  brief  account  of  the  controversy  in  the  Constituent  Assembly,  and 
the  proposals  that  were  brought  forward,  see  Brunet,  The  New  German  Con- 
stitution, Chapter  II  (New  York,  1922). 


SEGMENTATION  AND  FEDERATION        63 

And  naturally  the  Prussians  clung  with  desperation  to 
their  post  of  ascendency.  In  the  solution  that  was 
reached — if  solution  it  can  be  called — the  status  of 
Prussia  in  the  Reich  was  unquestionably  changed;  but  it 
is  impossible  to  say  in  advance  of  events  whether  her 
power  was  increased  or  diminished,  or  whether  it  was, 
after  all,  not  fundamentally  altered  in  degree. 

The  most  obvious  way  to  diminish  the  importance  of 
Prussia  in  the  federal  system,  if  that  was  to  be  continued, 
was  to  dismember  her  and  to  establish  certain  new  states 
within  her  old  territory.  There  were  the  Rhenish  prov- 
inces, for  example,  which  had  never  been  enamored  of 
their  absorption  into  Prussia  and  of  their  domination  by 
the  Prussian  bureaucracy.  There  was  Hanover,  which 
had  been  annexed  to  Prussia  by  force  in  1866  and  which 
had  never  been  completely  Prussianized.  There  were 
the  provinces  of  Upper  Silesia  and  of  East  Prussia,  the 
latter  now  separated  from  the  body  of  the  Reich  by 
Poland  and  the  Danzig  corridor.  The  plebiscites  which 
were  to  be  held  in  parts  of  both  of  these  provinces  to  deter- 
mine whether  they  would  or  would  not  remain  with  Ger- 
many might  be  favorably  influenced  by  a  separation  of 
the  provinces  from  Prussia.  Among  the  small  states  of 
central  Germany  there  was  a  movement  for  amalgamation 
into  a  single  state  which  would  also  claim  a  slice  of 
Prussian  territory. 

In  the  Constitutent  Assembly  the  deputies  from  the 
Rhineland  strenuously  urged  that  the  Rhenish  provinces 
be  formed  into  a  new  western  state  of  the  Reich,  which 
would  embrace  also  a  part  of  Westphalia  and  the  territories 
of  Oldenburg  and  Bremen.  Indeed  it  was  the  Rhineland 
that  figured  chiefly  in  all  of  the  discussions  of  Prussian 
dismemberment.  While  the  Prussians  presented  many 
arguments  in  opposition  to  the  creation  of  a  Rhenish  state 
within  the  Reich,  perhaps  the  most  powerful  opposing 
influence  was  the  danger  of  the  development  of  a  Rhenish 


Possible 
ways  of 
dismember- 
ing Prussia 


Possibility 
of  a 

Rhenish 
state 


64 


NEW  CONSTITUTIONS  OF  EUROPE 


No  segmen- 
tation of 
Prussia 
by  the 
constitution 


Constitu- 
tional 
provisions 


Difficulty  of 
operating 


state  outside  the  Reich.  In  spite  of  the  Peace  Conference, 
France  was  leaving  little  doubt  as  to  her  own  welcome  atti- 
tude toward  such  an  eventuation.  In  fact,  it  may  well  be 
that  it  was  France,  unwittingly,  rather  than  Prussia,  wit- 
tingly, that  prevented  the  carving  up  of  the  latter's  terri- 
tory within  the  Reich. 

The  decision  was  at  length  reached  that  no  immediate 
segmentation  of  Prussia  was  to  take  place.  The  consti- 
tution itself  made  no  changes  in  the  boundaries  of  the 
states.  Instead,  provisions  were  made  by  which  future 
changes  might  be  effected.  These  provisions  are  some- 
what complicated  and  must  be  read  largely  in  the  light  of 
the  problem  of  Prussia's  relative  size  and  power.1 

"The  alteration  of  state  boundaries  and  the  creation 
of  new  states  within  the  Reich  shall  take  place  by  virtue  of 
national  law  modifying  the  constitution."  But  a  "nation- 
al law  modifying  the  constitution "  requires  a  two-thirds 
vote  of  the  Reichstag;2  hence  Prussia  could  readily  block 
any  proposal  to  alter  her  boundaries.  Needless  to  say, 
however,  "where  the  states  directly  affected  consent,  an 
ordinary  law  shall  suffice,"  such  law  being  enacted  by  an 
ordinary  majority  vote.  But  what  if  one  of  the  states — 
Prussia,  for  instance — does  not  consent?  In  such  case, 
an  ordinary  law  may  likewise  serve  the  purpose,  provided 
"the  alteration  of  a  boundary  or  the  creation  of  a  new 
state  is  demanded  by  the  wishes  of  the  population."  But 
note  the  difficulty  of  making  these  wishes  known.  "One- 
third  of  the  residents  of  the  territory  to  be  separated  who 
are  qualified  to  vote  for  members  of  the  Reichstag"  must 
demand  a  referendum  upon  the  proposal.  Manifestly  this 
is  an  almost  prohibitively  high  proportion  of  the  voters, 
especially  in  consideration  of  the  huge  electorate  composed 
of  both  men  and  women.  Moreover,  the  proposal  must 
be  ratified  by  an  absolute  majority  of  all  the  electors,  in- 

1Art.  18  of  the  constitution. 
'Art.  76. 


SEGMENTATION  AND  FEDERATION        65 


eluding  those  who  do  not  participate,  and  by  three-fifths 
of  those  who  do  participate.1  It  is  perhaps  not  to  be 
presumed  that  Prussia  would  interpose  opposition  to 
a  popular  demand  so  overwhelmingly  expressed;  but  it 
ought  to  be  noted  that  even  in  respect  to  "ordinary  laws" 
Prussia,  having  a  majority  of  the  population  of  the  Reich, 
will  doubtless  also  have  a  majority  of  the  members  of  the 
Reichstag,2  although  not  of  the  Bundesrat.3 

Having  had  no  experience  in  the  working  of  demo- 
cratic institutions,  the  framers  of  the  German  constitution 
may  have  been  over-sanguine  concerning  the  ease  with 
which  initiative  petitions  and  popular  referenda  are 
operated.  Whether  from  largeness  of  faith,  however,  or 
from  cleverness  of  design,  they  have  made  the  process 
of  segmenting  Prussia  extraordinarily  difficult  of  ac- 
complishment. And  even  at  this,  lest  anti-Prussianism 
should  attempt  to  ride  the  waves  of  the  new  democracy 
immediately,  it  was  provided  that  this  difficult  process 
could  not  be  tried  for  two  years  after  the  constitution 
went  into  effect — that  is,  not  until  August  11,  192 1.4  It 
was  not  until  January,  1921,  that  the  plebiscite  required 
in  a  part  of  Upper  Silesia  by  Article  88  of  the  Treaty  of 
Versailles  was  set  for  March  20,  1921.  Meantime,  how- 
ever, it  was  desirable  to  offer  every  available  attraction 
to  the  Silesians.  The  Prussian-owned  coal  mines  in  the 
plebiscitary  area  were  of  immense  importance  to  Ger- 
many.5 Possible  transformation  of  the  Prussian  province 
of  Upper  Silesia6  into  the  member  state  of  Upper  Silesia 

'For  other  details  see  Art.  18. 

*Since  under  the  electoral  law  the  number  of  members  of  the  Reichstag  is  not 
determined  by  apportionment  on  the  basis  of  population,  but  depends  upon  the 
number  of  voters  who  participate  in  an  election,  it  is  impossible  to  say  that 
Prussia  will  always  have  an  absolute  majority.  See  below,  p.  99. 

'Art.  61. 

4Art.  167. 

"Bowman,  The  New  World,  pp.  345,  346  (Yonkers,  1922). 

The  province  was  created  by  a  Prussian  law  of  October  14, 1919.  Preussiche- 
gesftzblatt,  1919,  No.  169. 


Largeness 
of  faith 
or  clever- 
ness of 
design 


Constitu- 
tional 

amendment 
for  Upper 
Silesia 


66 


NEW  CONSTITUTIONS  OF  EUROPE 


Results  of 
Upper 
Silesian 
plebiscite 


might  have  a  favorable  influence  upon  the  vote.  But 
the  creation  of  this  state  prior  to  August  11,  1921,  could 
apparently  be  effected  only  by  a  constitutional  amend- 
ment.1 An  amendment  making  possible  the  establish- 
ment of  this  state  was  adopted  November  27,  1920.2 

The  result  of  the  plebiscite  was  on  the  whole  more  fa- 
vorable to  Germany  than  to  Poland;  but  differences  of 
opinion  arose  among  the  members  of  the  Inter-Allied 
Commission  in  respect  to  the  allocation  of  territory  to  Ger- 
many and  Poland  respectively.  In  the  end  the  matter 
was  referred  to  a  Commission  of  the  League  of  Nations,  and 
on  October  12,  1921,  the  text  of  the  award  of  the  League 
was  made  public.  In  addition  to  fixing  a  boundary,  the 
League  proposed  that  for  a  provisional  period  of  fifteen 
years  the  plebiscitary  area  should  be  placed  under  an 
"Upper  Silesian  Mixed  Commission"  composed  of  an 
equal  number  of  Germans  and  Poles  under  a  "neutral" 
presidency.3  On  May  14,  1922,  during  the  Genoa  Confer- 
ence, an  agreement  was  signed  by  Doctor  Rathenau  and 
M.  Skirmunt,  the  German  and  Polish  foreign  ministers, 
which  generally  confirmed  the  decision  and  proposal  of 
the  Council  of  the  League  of  Nations.  In  view  of  these 
complications  arising  out  of  the  indecisive  result  of  the 
plebiscite,  and  in  view  of  the  extensive  award  of  territory 
that  was  made  to  Poland,  it  is  improbable  that  the  state 
of  Upper  Silesia,  as  provided  by  the  constitutional  amend- 
ment, will  be  established.  What  remains  of  Upper  Silesia 
will  doubtless  as  heretofore  be  administered  as  part  of  the 
Regierungsbczirtk  Oppehi,  a  subdivision  of  the  Prussian 
province  of  Silesia. 

"Article  167  did  not  postpone  the  date  of  making  changes  in  state  boundaries 
by  constitutional  amendment  or  "where  the  states  directly  affected  consent." 
But  Upper  Silesia  was  not  a  state  and  therefore  could  consent  only  by  a  referen- 
dum, the  taking  of  which  was  postponed. 

2Reichsgesetzblatt,  1920,  No.  1987;  see  below,  German  constitution,  Art   167. 

^League  of  Nations  Official  Journal,  2d  year,  Nos.  10-12,  December,  1921, 
pp.  1223-1232. 


SEGMENTATION  AND  FEDERATION 


67 


Almost  immediately  after  the  revolution  the  two  small 
states  of  Reuss  (elder  and  younger  lines)  united;  and  a 
movement  was  started  for  creating  a  state  of  "Great 
Thuringia"  to  embrace  eight  of  the  small  states  of  central 
Germany  and  an  important  segment  of  Prussian  territory 
with  the  Prussian  city  of  Erfurt  as  capital.  Both  Prussia 
and  Erfurt  interposed  violent  opposition,  and  the  project 
as  a  whole  was  abandoned.  The  state  of  Thuringia  was 
nevertheless  formed  by  the  union  of  seven  states — Saxe- 
Weimar,  Saxe-Altenburg,  Reuss  (the  two  branches  having 
previously  united),  Saxe-Gotha  (not  including  Coburg), 
Schwarzburg-Rudolstadt,  Schwarzburg-Sonderhausen,  and 
Saxe-Meiningen.  The  consolidation  of  these  states  was 
effected  by  a  "treaty."  Their  consent  having  thus 
been  given,  the  state  of  Thuringia  was  recognized  by  an 
"ordinary  law"  of  the  Reich  of  April  30,  1920.  Shortly 
after  the  war  Coburg  detached  itself  from  the  Duchy  of 
Saxe-Coburg-Gotha  without  any  legal  sanction.  On  Oc- 
tober 30,  1919,  the  question  of  whether  this  "irregular" 
state  should  unite  with  Bavaria  or  with  the  new  state  of 
Thuringia,  then  in  the  making,  was  overwhelmingly  decided 
by  the  voters  of  Coburg  in  favor  of  union  with  Bavaria.1 
On  March  11,  1920,  the  Bavarian  government  consented, 
and  the  union  was  legalized  by  an  ordinary  law  of  the 
Reich  of  April  30,  1920. 

The  former  German  Empire  consisted  of  twenty-five 
units  exclusive  of  the  Imperial  Territory  of  Alsace-Lorraine. 
The  Reich  now  consists  of  eighteen  units;  for  counting 
Reuss  as  two  states,  seven  of  the  old  states  merged  into  the 
new  state  of  Thuringia,  while  an  eighth  state  (Saxe- 
Coburg-Gotha)  disappeared  partly  into  Thuringia  and 
partly  into  Bavaria.  In  net  result,  therefore,  the  constitu- 
tional provisions  for  the  alteration  of  state  boundaries 
and  entities  have,  for  the  present  at  least,  left  the  huge 
territory  of  Prussia  unaffected. 

!This  referendum  was  apparently  extra-constitutional. 


Formation 
of  state  of 
Thuringia 


Coburg 
unites  with 
Bavaria 


Eighteen 
states  in  the 
Reich 


68 


NEW  CONSTITUTIONS  OF  EUROPE 


American 
provision 
for 

admitting 
new  states 


Definition 
of  federal 
government 


The  constitution  of  the  United  States  provides  that 
"new  states  may  be  admitted  by  the  Congress  into  the 
Union;  but  no  new  state  shall  be  formed  or  erected  within 
the  jurisdiction  of  any  other  state ;  nor  any  state  be  formed 
by  the  junction  of  two  or  more  states,  or  parts  of  states, 
without  the  consent  of  the  legislatures  of  the  states  con- 
cerned as  well  as  of  the  Congress."  With  the  single 
exception  of  West  Virginia,  which  was  admitted  to  the 
Union  under  unusual  and  irregular  circumstances,  the 
territory  of  no  state  has  ever  been  affected  under  this 
provision.  The  clause  has  not  been  used  except  to  admit 
states  formed  out  of  territory  not  included  within  the 
jurisdiction  of  any  existing  state.  The  corresponding 
clauses  of  the  German  constitution  have  already  been 
pressed  into  service;  but  it  remains  to  be  seen  whether 
the  difficult  machinery  provided  for  the  possible  partition 
of  the  overshadowing  state  of  Prussia  can  be  and  will  be 
made  to  operate. 

Federal  government  as  distinguished  from  unitary 
government  is  usually  defined  as  a  system  under  which  a 
division  of  powers  is  made  between  a  central  government 
on  the  one  hand  and  local  units  of  government  on  the  other, 
which  division  of  powers  is  made  by  the  national  consti- 
tution and  may  be  altered  only  by  amending  the  consti- 
tution. It  might  be  argued  that  this  definition  and  the 
distinction  it  attempts  to  make  are  more  legalistic  than 
realistic.  It  might  be  urged  that  under  most  federal 
systems  there  can  be  and  usually  is  a  gradual  increase  in 
the  centralization  of  powers  without  formal  amendment  of 
the  constitution,  and  that  under  most  unitary  systems  the 
complete  obliteration  of  all  powers  of  local  self-govern- 
ment would  be  unthinkable  outside  the  realm  of  legal 
speculation.  It  may  be  readily  admitted  that  the 
difference  is  merely  one  of  degree ;  but  it  is  one  of  very  im- 
portant degree  both  in  fact  and  in  law. 


SEGMENTATION  AND  FEDERATION        69 


The  essential  tests  of  federalism,  it  would  seem,  are  two 
in  number:  first,  the  powers  that  are  conferred  upon  or 
reserved  to  the  local  units  must  be  of  some  genuine  po- 
litical significance;  and  second,  these  powers  cannot  be 
withdrawn  from  the  local  units  at  the  unrestricted  will 
of  the  central  government.  A  system  that  leaves  only 
a  negligible  dross  of  powers  to  the  component  states  is  a 
federal  system  only  in  name.  A  system  under  which 
the  central  government  is  empowered  to  extend  its  own 
competence  at  pleasure  is  not  a  federal  but  a  unitary 
system.  Judged  by  either  of  these  tests,  the  new  German 
system  leaves  doubt  as  to  the  reality  of  its  federalism. 

The  legislative  powers  of  the  former  imperial  govern- 
ment were  by  no  means  inconsiderable;  but  the  powers 
of  the  Reich  have  been  enormously  increased  under  the 
new  constitution.  As  a  French  commentator  has  said, 
the  centralizing  tendency  "has  gone  as  far  as  possible 
without  completely  suppressing  the  reason  for  the  exist- 
ence of  the  states."1  Indeed  it  is  not  certain  that  their 
raison  d'etre  has  not  been  suppressed.  The  constitution, 
like  the  old  constitution,  confers  power  upon  the  Reich 
in  respect  to  three  different  groups  of  subjects.  Over 
the  first  group2  the  Reich  is  given  exclusive  control.  Over 
the  second  group3  it  is  given  priority  of  jurisdiction,  for 
the  states  may  legislate  only  "as  long  as  and  in  so  far  as 
the  Reich  does  not  make  use  of  its  powers  of  legislation.  "4 
In  respect  to  the  third  group6  the  Reich  "may  prescribe 
fundamental  principles,"  leaving  only  matters  of  detail 
to  the  states.  In  one  important  field  of  economic  legisla- 
tion not  only  do  the  laws  of  the  Reich  take  precedence  over 
those  of  the  states,  but  without  legislating  itself  the  Reich 


Tests  of 
federalism 


'Brunet,  op.  cit.,  p.  62. 

'Art.  6. 

'Art.  7,  8,  9.     Cf.  Art.  4  of  the  old  constitution. 

«Art.  12. 

•Arts.  10,  11. 


Legislative 
centraliza- 
tion in 
Germany 


70 


NEW  CONSTITUTIONS  OF  EUROPE 


Little  power 
left  to  the 
states 


Increase  of 
administra- 
tive cen- 
tralization 


may  also  veto  the  laws  of  any  state.1  In  the  realm  of 
finance  the  Reich  may  not  only  claim  such  sources  of 
revenue  as  it  requires,  with  "due  consideration"  for  the 
"needs  of  the  states,"  but  may  also  determine  the  fun- 
damental principles  of  state  taxation  and  revenue.2 

Reading  this  list  of  subjects  in  respect  to  which  the 
Reich  is  vested  with  exclusive  or  potential  control,  one 
can  but  wonder  what  sphere  of  action  will  remain  to  the 
states  if  the  Reich  elects  to  exercise  the  full  measure  of 
its  competence.  Tendency  toward  centralization  has 
been  the  experience  under  most  federal  systems  of  govern- 
ment. It  will  require  heroic  opposition  on  the  part  of  the 
states  of  Germany  to  resist  this  tendency.  As  a  German 
commentator  has  remarked:  "According  to  the  con- 
clusions of  the  Constitutional  Committee,  a  constitutional 
competence  is  secured  to  the  states  free  from  control  by 
the  Reich,  only  in  so  far  as  the  constitution  fixes  this 
competence  by  special  provision.  In  case  of  doubt,  power 
belongs  to  the  states  solely  under  the  legislation  and  su- 
pervision of  the  Reich."  Therefore,  he  says,  "We  can 
understand  it  when  the  governments  of  states  were  not 
acquiescent  in  respect  to  this  matter  and  when  Saxony  in 
her  declaration  and  protest  of  April  16  [1919J  spoke  of 
the  use  of  force  by  the  states."3 

It  should  be  noted  also  that  there  is  under  the  new  con- 
stitution a  very  considerable  increase  in  the  administrative 
powers  of  the  central  government.  Under  the  Empire 
nearly  all  laws  including  imperial  laws  were  executed  by 
the  states  and  not  by  imperial  officials.  To  an  extent 
this  is  still  true — indeed  the  largest  sphere  of  competence 
that  is  left  to  the  states  appears  to  be  administrative.  But 
in  the  realm  of  its  exclusive  powers  the  Reich  also  has  a 
large  administrative  competence  of  its  own.  Moreover, 

'Art.  12. 
'Art.  11. 
sErvvin  Jacobi,  Einheitsstaat  oder  Bundesstaat,  p.  10  (Leipzig,  1919). 


SEGMENTATION  AND  FEDERATION        71 

"in  the  entire  sphere  of  possible  legislation,  the  Reich  now 
enjoys  by  constitutional  grant  also  the  power  of  supervi- 
sion over  the  administration  of  the  states,  so  that  the  Reich 
can  exercise  this  supervision  where  it  wills,  unless  perhaps 
a  line  is  drawn  by  special  and  exceptional  provisions  of 
the  constitution.  Moreover,  the  means  of  supervision  are 
strengthened;  a  commissioner  of  the  Reich  may  be  sent  to 
the  government  of  the  state,  and  the  Reich  may,  upon  the 
failure  of  the  central  officers  of  the  state,  forward  instructions 
direct  to  the  intermediate  and  subordinate  officers."1 

Finally,  of  course,  if  the  Reich  is  not  content  with  its 
immense  grant  of  powers,  there  remains  the  possibility  of 
amending  the  constitution.  Under  the  old  constitution  the 
Bundesrat  represented  the  state  governments,  and  the 
provision  that  fourteen  votes  in  the  Bundesrat  were  suffi- 
cient to  defeat  a  proposed  amendment  to  the  constitution 
operated,  not  only  to  safeguard  the  paramountcy  of 
Prussia,  but  also  to  protect  the  small  states  against  Prussian 
encroachment  by  the  route  of  constitutional  amendment. 
It  is  quite  otherwise  in  the  new  constitution.  An  amend- 
ment requires  a  two-thirds  vote  in  the  Reichstag  and  the 
Reichsrat;  but  the  former  may  by  the  same  extraordinary 
majority  adopt  an  amendment  over  the  veto  of  the  latter, 
in  which  case  the  Reichsrat  may  only  demand  a  referen- 
dum.2 Moreover,  the  new  Reichsrat  is  scarcely  in  any 
sense  a  counterpart  of  the  old  powerful  Bundesrat  which 
it  nominally  replaces.  At  the  very  least,  then,  it  may 
be  said  that  the  German  constitution  may  be  amended  as 
easily  as  a  presidential  veto  may  be  overridden  by  the 
American  Congress.  But  if  Congress  could  add  to  its 
powers  by  such  a  process,  only  a  high  and  unfamiliar  sense 
of  constitutional  morality  could  delay  the  progress  of  the 
federal  system  in  the  United  States  toward  the  institu- 
tional scrap-heap. 

tfacobi,  op.  cit.t  pp.  9.  10. 
'Art.  76. 


Central 
powers 
may  be 
increased 
by  amend- 
ment 


The 

legislature 
may  amend 
the 
constitution 


NEW  CONSTITUTIONS  OF  EUROPE 


Prussia 
makes 
question  of 
federalism 
important 


In  one  aspect  of  the  matter,  it  may  be,  as  Hugo  Preuss 
has  said,  that  "whether  the  German  Republic  should  now 
be  called  a  federation  of  States  (Bundesstaat)  with  strong 
national  central  authority,  or  a  unified  State  (Einheitsstaat) 
with  strong  territorial  decentralization,  is  hardly  more 
than  a  theoretical  controversy  about  terminology."1  But 
the  question  of  the  position  of  Prussia  is  inextricably 
bound  up  in  the  question  of  "  Einheitsstaat  oder  Bundes- 
staat ";  and  until  the  role  and  the  competence  of  Prussia  in 
the  new  scheme  of  things  are  fully  comprehended,  neither 
the  Germans  themselves  nor  the  rest  of  the  world  will  be 
satisfied  with  this  cavalier  dismissal  of  the  matter  as  "a 
theoretical  controversy  about  terminology."  Brunet  says 
that  "nearly  all  the  German  jurists  have  attempted  to 
answer  this  question  and  are  almost  equally  divided  in  the 
answer."2  Unquestionably  some  of  their  arguments  are 
directed  to  points  of  no  interest  or  importance  whatever.3 
A  federal  system  is  not  changed  into  a  unitary  system  by 
rechristening  the  units  Lander  in  lieu  of  Staaten.  Federal- 
ism is  a  matter  of  the  location  of  power  and  of  nothing  else. 
What  is  the  power  of  Prussia  in  the  new  German  scheme? 
In  the  words  of  a  professor  of  law  in  the  University  of 
Leipsig,  it  is  somewhat  as  follows: 

But  the  neich  in  relation  to  Prussia  finds  itself  in  the  situation 
here  described.  A  Prussia,  comprising  more  than  four-sevenths 
of  the  Reich  in  area  as  well  as  in  number  of  inhabitants,  together 

lThe  Encyclopedia  Britannica,  Vol.  XXXI,  p.  251  (London  and  New  York, 
1922).  In  the  article  on  "Germany"  the  subdivision  entitled  "The  Republican 
Constitution"  was  written  by  Dr.  Preuss,  who  was  chiefly  responsible  for  draft- 
ing the  constitution. 

2Brunet,  The  New  Constitution  of  Germany,  p.  70  (New  York,  1922).  He 
cites  as  holding  the  view  that  Germany  has  become  a  unitary  state :  Giese,  Die 
Reichsverfassung,  vom  11.  August  1919,  p.  65;  Jacobi,  Einheitsstaat  oder  Bundes- 
staat, p.  6,  et  seq.;  Poetsch,  Handausgabe  der  Reichsverfassung,  p.  25,  et  seq.; 
Wenzel,  Festgabe  fur  Bergbohn,  1919,  p.  159,  et  seq.  He  cites  as  taking  the  op- 
posite view:  Stier-Somblo,  Reichsverfassung,  p.  79  etseq.;  Walter  Jellinek,  Revolu- 
(ion  und  Reichsverfassung,  in  Jahrbuch  des  offentlichen  Rechts,  p.  81;  Arndt, 
Reichsverfassung,  1919,  p.  35. 

3Brunet,  op.  cit.,  pp.  70,  71. 


SEGMENTATION  AND  FEDERATION        73 

with   Prussian   particularism   which   is   incontestably   strongly      Is 
developed  and  remains  in  full  vigor,  makes  of  the  unresisting      Germany 
German  unitary  state  simply  an  extended  Prussia.     Prussia      an  extended 
runs  no  risk  when  for  the  event  of  a  unified  transformation  of     Prussia? 
the  Reich,  she  places  at  its  disposal  her  power  over  customs  and 
railroads.     For  in  reality  the  "merging  of  Prussian  administra- 
tion into  the  administration  of  the  Reich"  can  for  the  present 
only  lead  to  a  transformation  of  the  administration  of  the  Reich 
into  Prussian  administration. 

But  in  connection  with  this  stroke  only  two  possibilities  pre-  The 
sent  themselves  for  the  event  of  a  transformation  of  Germany  alternative 
into  a  unitary  state :  Either  Prussia  in  her  hitherto  existing  form 
will  take  possession  of  the  state,  in  which  case  one  must  be  con- 
scious of  this,  that  the  German  unitary  republic  in  reality  means 
a  Prussian  unitary  republic,  within  which  the  non-Prussian 
districts  in  all  questions  to  be  decided  must  follow  the  Prussian 
will.  Or — if  one  would  avoid  this  Prussian  unitary  state  and 
will  at  least  make  an  effort  to  erect  a  unitary  state  with  a  so-to- 
speak  neutral  central  will — then  the  end  of  Prussia  is  a  prelim- 
inary condition,  whether  this  be  accomplished  in  the  way  of  a 
self-undertaken  decomposition  or  of  a  destruction  decreed  by 
the  Reich. 

Both  the  proposal  of  Preuss  and  the  proposal  of  the  Consti-      Only 
tutional  Committee  counted  upon  such  a  dissolution  of  Prussia      internal 
and  provided  a  legal  route  toward  this  end;  in  doing  so  they      disintegra- 
thought  first  of  all  of  a  decomposition  from  within,  but  the  Con-      turn  of 
stittitional  Committee  also  opened  up  the  possibility  of  destruc-     Prussia  is 
tion.     At  all  events  it  must  be  thus  apparent  that  not  the  idea     possible 
of  an  extended  Prussia  but  the  idea  of  a  unitary  Reich  over 
Prussia  would  be  realized.     On  the  contrary  the  proposal  in 
respect  to  the  ministry  permitted  no  change  in  its  permanency 
by  Prussia,  certainly  not  in  the  interest  of  a  Reich  governed 
by  a  unitary  Prussia  but  in  behalf  of  a  federal  state. 

If  we  continue  for  the  present  with  the  unitary  state,  so  is 
the  contrast  between  a  destruction  of  Prussia  and  her  decom- 
position from  within  not  so  great  as  at  first  appears.  For  in 
connection  with  a  partition  of  Prussia  by  the  Reich  the  determi- 
nation by  a  law  of  the  Reich  is  not  conclusive.  Always  the 
question  still  arises  whether  the  Reich  is  also  competent  to  give 
ultimate  effect  to  its  order  by  force.  And  once  more  the  sim- 
ple fact  is  of  weight  that  the  Reich  is  powerless  in  the  face  of  a 
closed  Prussia.  Only  when  within  Prussia  great  districts  fall 
away  from  her  can  the  Reich  partition  Prussia.  Moreover,  the 
much  discussed  destruction  of  Prussia  is  possible  only  under 
the  hypothesis  of  an  internal  disintegration.1 


^acobi,  Einhetisstaat  oder  Bundesstaat,  pp.  27-29. 


74 


NEW  CONSTITUTIONS  OF  EUROPE 


Prussia  is 
still  above 
the  Reich 


The 

Austrian 

Bund 


Prussia  has  lost  the  tremendous  asset  of  having  a  King 
who  was  ex  officio  German  Emperor  and  who  appointed, 
usually  in  one  and  the  same  person,  the  powerful  Imperial 
Chancellor  and  the  powerful  Minister  President  of  Prussia.1 
She  has  lost  certain  specified  vetoes2  and  privileges, 
as  well  as  a  leadership  derived  from  her  dominating  in- 
fluence in  the  most  powerful  organ  of  the  Empire,  the 
Bundesrat,  now  sadly  reduced  to  the  status  of  a  gesturing 
Reichsrat.  Even  in  this  emasculated  upper  chamber  she 
has  been  compelled  to  share  her  representation  with  her 
provinces.8  But  these  losses  cannot  gloss  the  fact  that 
Prussia,  with  four-sevenths  of  the  population  of  Germany, 
can  elect  the  President  of  the  Reich  and  control  a  majority 
of  the  seats  in  the  Reichstag.  "Prussia  is  still  above  the 
Reich." 

The  union  of  Austria  with  Germany  was  contemplated 
by  both  the  German4  and  the  Austrian5  constitutions  but 
was  prohibited  by  the  Treaty  of  Versailles.6  Even  if 
Austria,  with  a  population  of  more  than  six  millions,  had 
been  permitted  to  join  Germany,  whether  as  one  state  or 
as  several  states,  Prussia  would  still  have  had  a  substan- 
tial majority  of  the  population  of  the  Reich.7  Needless 
to  say,  however,  her  relative  strength  would  have  been 
somewhat  decreased. 

The  federal  character  of  the  Austrian  Republic  is  em- 
phasized throughout  the  constitution  by  the  prodigal  use 

'See  below,  p.  £13. 

2Arts.  5,  11,  35,  and  37  of  the  old  constitution. 

3Art.  63. 

4Art.  61. 

*See  below,  p.  255. 

•Article  80  reads:  "Germany  acknowledges  and  will  respect  strictly  the  inde- 
pendence of  Austria,  within  the  frontiers  which  may  be  fixed  in  a  Treaty  between 
that  State  and  the  Principal  Allied  and  Associated  Powers;  she  agrees  that  this 
independence  shall  be  inalienable,  except  with  the  consent  of  the  Council  of  the 
League  of  Nations." 

7According  to  the  1919  census  there  were  60,837,579  people  in  the  German 
Reich.  Of  these  37,665,013  (more  than  four-sevenths,  but  slightly  less  than 
three-fifths)  were  in  Prussia.  Under  the  census  of  1920  the  population  of 
Austria  was  approximately  6,711,859. 


SEGMENTATION  AND  FEDERATION        75 


of  the  word  Bund.  It  is  not  a  Republik  or  a  Reich  but  a 
Bundesstaat  that  recurs  again  and  again  in  the  Bundes- 
verfassungsgesetz.  It  is,  nevertheless,  no  difficult  matter  to 
comprehend  the  thin  essence  of  the  federalism  that  is 
provided  by  this  prolix  and  circumlocutional  instrument 
of  government.  The  Union  consists  of  only  eight  com- 
ponent states,1  but  in  the  problem  of  the  state  of  Lower 
Austria  there  is  reproduced  in  miniature  a  situation  some- 
what similar  to  that  of  Prussia  in  Germany.  Lower 
Austria  contains  about  half  of  the  population  of  the 
country.  No  doubt  this  accounts  in  large  measure  for  the 
curious  and  complicated  arrangements  of  the  constitution 
in  respect  to  the  state  of  Lower  Austria  and  the  city  of 
Vienna.2  For  certain  purposes  these  two  divisions  of 
Lower  Austria  are  regarded  as  separate  states,  and  a  kind 
of  "dualism"  between  them  is  set  up  within  the  consti- 
tution.8 

In  matters  of  legislation  the  powers  of  the  central 
government  in  Austria  appear  to  be  even  more  compre- 
hensive than  those  of  the  German  Reich.  As  in  the 
German  constitution  there  are  three  groups  of  subjects, 
but  the  basis  of  division  is  somewhat  different;  there  is, 
for  example,  no  group  of  subjects  over  which  the  states 
may  legislate  until  the  central  government  elects  to  occupy 
its  field  of  competence.  Over  the  first  group  the  Federal 
State  has  both  legislative  and  executive  control.4  Over 
the  second  and  much  less  important  group6  it  has  a  legis- 


irrhe  constitution  makes  provision  for  the  state  of  Burgenland,  or  German 
West  Hungary,  when  that  territory,  which  was  assigned  to  Austria,  shall  have 
been  completely  handed  over  by  Hungary.  This  constitutes  the  eighth  state. 

'Arts.  3,  34,  108-114. 


would  have  supposed  that  the  experience  with  "dualism"  under  the 
old  Monarchy  would  have  been  sufficient  to  cause  an  avoidance  of  the  principle; 
although  of  course  the  dualism  between  Lower  Austria  and  Vienna  is  of  a  quite 
different  variety. 

4Art.  10.     See  also  Art.  102  in  re  the  administrative  competence  of  the  federal 
government. 

•Art.  11. 


Lower 
Austria 
comparable 
to  Prussia 


Legislative 
and  admin- 
istrative 
centraliza- 
tion in 
Austria 


76 


NEW  CONSTITUTIONS  OF  EUROPE 


Federal 
power  of 
veto  and 
dissolution 


Austrian 

federalism 

attenuated 


Reason  for 
centraliza- 
tion in 
Czecho- 
slovakia 


lative  competence  that  is  apparently  exclusive;  but  "the 
states  have  the  power  of  execution,"  which  is  nevertheless 
subject  to  federal  supervision.1  Over  the  third  group  it 
has  no  power  of  execution  and  has  the  power  to  legislate 
only  as  to  "fundamental  principles."2  The  Federal  State 
has  practically  complete  control  over  the  sources  of 
national,  state,  and  local  revenue,3  while  the  division  of 
competence  in  respect  to  education  was  left  for  later 
determination  by  a  federal  constitutional  law.4  Resid- 
uary powers  belong  to  the  states;6  but  it  is  difficult  to 
imagine  any  power  of  importance  that  is  not  covered  by 
the  constitutional  enumeration  in  favor  of  the  Federal 
State.  Even  within  the  manifestly  restricted  field  of 
state  legislative  competence,  the  Federal  Ministry  may 
impose  a  suspensory  veto  upon  any  state  law;6  it  may 
even  bring  about  the  dissolution  of  a  state  Landtag.7 
Moreover,  there  are  in  the  federal  constitution  a  great 
many  details  regulating  the  organization  not  only  of  the 
state  governments  but  also  of  the  municipal  governments. 

It  is  difficult  to  assess  a  governmental  system  from  the 
naked  language  of  its  fundamental  law.  But  judged  by 
other  federal  systems  Austrian  federalism  appears  to  be 
highly  attenuated.  It  is  an  idea  rather  than  a  fact,  an 
impression  rather  than  a  reality  —  an  impression  created 
chiefly  by  repetitious  reference  to  the  Bund. 

Because  of  their  composite  character  and  diversity  of 
nationalities  the  introduction  of  federalism  into  the  new 
states  of  Czechoslovakia  and  Jugoslavia  would  in  many 
respects  have  been  logical  and  natural.  In  Czechoslovakia 
there  are  five  nationalities.  Of  the  nearly  fourteen  million 
inhabitants,  the  Czechs  (seven  million)  and  the  Slovaks 
(two  and  a  half  million)  constitute  about  65  per  cent. 
There  are  nearly  four  million  Germans,  nearly  seven 
hundred  thousand  Magyars,  and  six  hundred  thousand 


See  also  Art.  16. 
'Art.  15. 


'Art.  12. 
«Art.  98. 


3Art.  13. 
7Art.  100. 


SEGMENTATION  AND  FEDERATION        77 


Ruthenians.1  These  several  nationalities  are  so  distributed 
that,  if  a  federal  system  were  established  with  large  local 
autonomy  in  the  hands  of  the  component  units,  the  Czecho- 
slovaks would  find  it  difficult  if  not  impossible  to  control 
the  governments  of  some  of  these  units.  Silesia,  for 
example,  would  doubtless  be  controlled  by  the  Germans 
and  Ruthenia  by  the  Ruthenians,  while  in  Slovakia  the 
Slovak  majority  over  the  combined  Magyars,  Germans, 
and  Ruthenians  is  so  small  that  their  control  would  be  pre- 
carious.2 It  was  because  of  this  fact  that  federalism  was 
not  seriously  considered  by  the  Czechs  and  Slovaks. 
Manifestly  they  could  dominate  the  political  situation 
much  more  easily  under  a  unitary  system  of  govern- 
ment. 

In  Jugoslavia  the  issue  between  federalism,  or  decentrali- 
zation, and  unitarism,  or  centralization,  was  hotly  fought. 
This  was  as  might  have  been  expected;  for  Jugoslavia 
was  formed  of  the  independent  Kingdoms  of  Serbia  and 
Montenegro;  of  Croatia-Slavonia,  which  had  enjoyed  a 
considerable  measure  of  autonomy  under  Hungary;  of 
Bosnia-Herzegovina,  which  since  1910  had  had  a  measure 
of  autonomy  under  the  joint  administration  of  Austria 
and  Hungary;  of  the  Austrian  province  of  Dalmatia  and 
parts  of  the  Austrian  provinces  of  Carniola,  Carinthia, 
Styria,  and  Istria  (these  parts  constituting  Slovenia) ;  and 
of  parts  of  Banat,Backa,  and  Baranja,  which  had  been  inte- 
grated with  Hungary  proper.  In  view  of  the  difference  of 
political  tradition  in  these  several  units  and  of  diversity 
of  sub-race,  language,  and  religion,  a  federal  system  would 

'The  figures  given  by  Bowman,  The  New  World,  p.  231  (New  York,  1922),  do 
not  entirely  agree  with  those  given  by  Masaryk  in  his  article  on  "Czechoslovak- 
ia" in  The  Encyclopaedia  Britannica,  Vol.  XXX,  p.  785  (London  and  New 
York,  1922). 

'"Only  60  per  cent,  of  the  people  of  this  district  are  Slovaks;  a  quarter  are 
Magyars;  8  per  cent,  are  Germans,  and  7  per  cent,  are  Ruthenians.  The  total 
population  is  about  3,000,000.  Therefore,  in  any  local  Slovak  parliament  there 
would  be  a  bare  majority  of  Slovak  members.  In  a  crisis  involving  the  Czechs, 
Slovakia  might  lean  toward  Hungary  in  a  way  that  would  imperil  the  existence 
of  Czechoslovakia."  Bowman,  op.  cit.,  p.  212. 


Composition 
of  Jugo- 
slavia 


78 


NEW  CONSTITUTIONS  OF  EUROPE 


Jugoslavia 
or  a  "Great 
Serbia" 


Idea  of 

British 

imperial 

federation 

dead 


"Devolu- 
tion" in  the 
United 
Kingdom 


seem  to  have  been  highly  appropriate.1  A  genuine  Jugo- 
slav program  called  for  a  federation;  but  the  program 
of  a  "Great  Serbia"  called  for  centralization.  In  the 
end  the  principle  of  centralization  triumphed;  but  the 
constitution  that  embodied  it  was  accepted  by  the  Croats 
and  Slovenes  not  with  grace  but  apparently  because  any 
constitution  was  better  than  none.  It  was  only  in  the 
official  designation  of  the  new  state  as  the  "Kingdom  of 
the  Serbs,  Croats,  and  Slovenes"  that  their  "separate- 
ness"  found  recognition. 

No  discussion  of  the  recent  development  of  federalism 
in  Europe  would  be  complete  without  some  mention  of  the 
situation  in  Great  Britain.  For  a  quarter  of  a  century 
or  more  there  has  been  considerable  discussion  of  the 
matter  of  imperial  federation,  looking  to  the  establishment 
of  more  satisfactory  relations  between  the  self-governing 
Dominions  and  the  mother  country.  But  imperial  federa- 
tion is  no  longer  a  subject  of  practical  politics  in  the 
British  Empire.  To  any  possible  application  of  the  federal 
idea  the  Dominions  appear  to  prefer  then-  present  indefinite 
status,  which  nets  them  complete  independence  in  nearly 
all  but  name.  A  British  imperial  constitution  is  probably 
wholly  out  of  the  question.2 

As  applied,  however,  to  the  United  Kingdom  itself,  the 
agitation  for  federalism  under  the  designation  of  "devolu- 
tion" is  by  no  means  a  dead  issue.  And  the  agitation 
rests  not  so  much  upon  a  demand  for  self-government 
among  the  units  of  the  Kingdom  as  upon  the  practical 
necessity  of  bringing  some  measure  of  relief  to  an  over- 

^'The  total  number  of  inhabitants  is  about  12,000,000,  divided  as  follows: 
Serbs,  6,000,000;  Croats,  2,500,000;  Slovenes,  1,000,000;  Macedonian  Slavs, 
550,000;  Magyars,  450,000;  Albanians,  250,000;  Moslem  Serbs,  625,000;  Ru- 
manians, 150,000;  Germans,  450,000;  others,  175,000."  Bowman,  op.  cit.r 
p.  253. 

2For  a  discussion  of  some  of  the  schemes  for  imperial  federation  see  Dicey, 
The  Law  of  the  Constitution,  Introduction  (8th  ed.,  London,  1915);  Duncan 
Hall,  The  British  Commonwealth  of  Nations  (London,  1920);  and  Pollard.  The 
Evolution  of  Parliament. 


SEGMENTATION  AND  FEDERATION        79 


burdened  Parliament  and  Cabinet.  The  Parliament  of 
the  United  Kingdom  acts  in  four  more  or  less  distinct 
capacities:  first,  as  a  local  legislature  for  the  separate 
interests  of  England  and  Wales,  of  Scotland,  and  formerly 
of  Ireland;  second,  as  a  national  legislature  for  the  in- 
terests of  the  United  Kingdom  as  a  whole;  third,  as  an 
imperial  legislature  that  is  peculiarly  responsible  for  the 
partially  self-governing  dependencies,  crown  colonies,  and 
protectorates;  and  fourth,  as  the  "single,  sole,  and  sover- 
eign authority  finally  responsible  for  the  control  and  pro- 
tection of  the  interests  of  the  British  Empire  as  a  whole 
and  in  all  its  parts."1  In  these  several  capacities  the 
Parliament  of  the  United  Kingdom  is  responsible  directly 
or  indirectly  for  the  peace,  order,  and  good  government  of 
a  quarter  of  the  total  population  of  the  earth.  The  bur- 
den upon  it  has  of  recent  years  become  almost  intolerable. 
Imperial  interests  have  grown  in  number  and  complexity. 
The  internal  legislative  and  administrative  problems  of  the 
people  of  the  British  Isles,  like  the  similar  problems  of  most 
other  peoples,  have  likewise  become  more  numerous  and 
more  complicated.  Merely  because  of  the  ever-increasing 
concentration  of  business  many  persons  have  thought 
that  some  measure  of  decentralization  was  not  only  de- 
sirable but  also  indispensable.  To  this  end,  and  wholly 
apart  from  the  unique  and  difficult  Irish  problem,  pro- 
posals have  been  made  for  a  devolution  of  some  part  of  the 
authority  of  the  English  Parliament  to  local  legislatures 
created  for  England,  Scotland,  and  Wales.2 

JMacDonald,  The  Case  for  Federal  Devolution,  p.  8  (London,  1920). 

2Mr.  MacDonald  lists  a  number  of  effects  that  congestion  has  on  the  English 
parliamentary  system.  (1)  Closure  of  debates  is  necessary,  but  the  rules  in 
force  can  be  used  to  override  the  rights  of  minorities,  and  "to  accept  them  as  per- 
manent parts  of  the  procedure  of  the  House  must  inevitably  tend  to  aggrandize 
the  power  of  governments  and  to  diminish  in  a  corresponding  degree  the  power 
of  control  by  the  House  over  them."  (2)  Legislation  by  reference  is  a  device 
that  is  successfully  used  in  order  to  save  time;  but  it  makes  the  law  more  diffi- 
cult to  understand  and  adds  greatly  to  the  cost  of  litigation.  (8)  The  with- 
drawal of  bills  from  the  consideration  of  the  House  as  a  whole  and  their  refer- 
ence to  committees  results  in  a  saving  of  time;  but  the  practice  divides  the 


Parliament 
over- 
burdened 


80 


NEW  CONSTITUTIONS  OF  EUROPE 


Conference 
on  "Devo- 
lution" 


The 

Speaker's 

plan 


In  October,  1919,  the  Prime  Minister  appointed  a  Con- 
ference on  Devolution,  which  was  presided  over  by  the 
Speaker  of  the  House  of  Commons.  This  action  was 
taken  in  response  to  a  resolution  passed  by  the  House  of 
Commons  by  a  large  vote  on  June  4,  1919. *  The  Con- 
ference was  unable  to  reach  an  agreement  but  made  a 
report  in  April,  1920.  Two  schemes  were  proposed,  one 
by  the  Speaker  and  the  other  by  Mr.  Murray  MacDonald, 
a  member  of  the  Conference.2  The  Speaker's  plan  favored 
the  experimental  establishment  of  a  subordinate  legislature 
for  each  of  the  three  national  units  of  Great  Britain — 
England,  Scotland,  and  Wales.  These  subordinate  legis- 
latures, called  Crown  Councils,  would  be  composed  of 
two  chambers,  a  council  of  commons  and  a  council  of 
peers.  Each  council  of  commons  would  be  made  up  of  the 

responsibility  of  the  House  of  Commons  and  has  many  other  objections.  (See 
also  Willoughby  and  Rogers,  op.  cit.,  p.  249.)  (4)  "The  rapidly  growing  and 
still  more  injurious  practice  of  referring  difficult  and  controversial  points  of 
legislation  from  parliament  as  a  whole  to  public  departments  to  be  dealt  with  by 
them  through  orders  in  council,  provisional  orders,  and  departmental  commit- 
tees" furnishes  one  explanation  of  the  outcry  against  the  increasing  bureaucracy 
of  administrative  departments.  (For  an  interesting  discussion  of  the  nature 
and  consequences  of  this  administrative  legislation  see  C.  T.  Carr,  Delegated 
Legislation  [Cambridge,  1921]).  (5)  Moreover  congestion  is  not  without  im- 
portance in  respect  to  Cabinet  responsibility.  "The  work  of  the  Cabinet,  and 
particularly  the  legislative  and  more  onerous  side  of  it,  has  branched  out  in  so 
many  and  such  different  directions  that  no  single  member  of  it  can  possibly  make 
himself  acquainted  with  or  responsible  for  it  all.  It  is  notorious  that,  in  conse- 
quence of  this,  collective  responsibility  of  the  Cabinet  for  the  proposals  it 
submits  to  Parliament  has  ceased  to  be  a  reality  and  become  a  mere  form." 
MacDonald,  op.  cit.,  pp.  17-30. 

1It  was  resolved:  "That,  with  a  view  to  enabling  the  Imperial  Parliament  to 
devote  more  attention  to  the  general  interests  of  the  United  Kingdom  and,  in 
collaboration  with  the  other  Governments  of  the  Empire,  to  matters  of  common 
Imperial  concern,  this  House  is  of  opinion  that  the  time  has  come  for  the  creation 
of  subordinate  Legislatures  within  the  United  Kingdom,  and  that  to  this  end 
the  Government,  without  prejudice  to  any  proposals  it  may  have  to  make  with 
regard  to  Ireland,  should  forthwith  appoint  a  Parliamentary  body  to  consider 
and  report — 

"  (1)     upon  a  measure  of  Federal  Devolution  applicable  to  England,  Scotland, 

and  Ireland,  defined  in  its  general  outlines  by  existing  differences  in 

law  and  administration  between  the  three  countries; 

upon  the  extent  to  which  these  differences  are  applicable  to  Welsh 

conditions  and  requirements;  and 

upon  the  financial  aspects  and  requirements  of  the  measure." 

*See  Conference  on  Devolution:  Letter  to  Mr.  Speaker  from  the  Prime  Minister 
(with  Appendices).  Cmd.  692,  1920. 


Donald's 


SEGMENTATION  AND  FEDERATION       81 

members  of  the  House  of  Commons  elected  from  the  area 
of  its  jurisdiction.  Each  council  of  peers  would  consist  of 
peers  nominated  by  the  committee  of  selection  of  the 
House  of  Lords,  and  its  membership  would  be  limited  to 
half  that  of  the  council  of  commons.  Sessions  would  be 
held  in  the  autumn,  it  being  assumed  that  Parliament 
would  continue  its  practice  of  sitting  during  the  spring 
and  summer  months. 

The  alternative  scheme  framed  by  Mr.  MacDonald  Mr.  Mac- 
differed  from  the  Speaker's  scheme  in  the  important  par- 
ticular of  proposing  the  permanent  establishment  of  sub- 
ordinate parliaments  separately  elected.  The  question 
of  whether  these  legislatures  should  be  bicameral  or  uni- 
cameral  was  left  to  the  determination  of  the  Government; 
but  it  was  urged  that  if  the  decision  of  the  Government 
favored  the  bicameral  system,  the  recommendations  of  the 
Bryce  Conference  should  be  followed  in  the  matter  of  the 
composition  and  the  powers  of  the  second  chambers.1  In 
respect  to  the  "devolution"  of  powers,  which  of  course 
amounted  to  a  division  of  powers  between  the  British 
Parliament  and  the  local  legislatures,  the  proposals  were 
substantially  identical.2  The  division  would  be  somewhat 
different  from  that  of  any  other  federal  system;  but,  apart 
from  the  fact  that  it  would  be  subject  to  alteration  at  the 

JSee  above,  pp.  45  ff.;  below,  Appendix  V. 

*On  the  local  legislatures,  it  was  proposed  to  devolve  powers  over  the  following 
matters : 

(1)  internal  commercial  undertakings,  professions,  and  societies  (advertise- 
ments, amusement  places  and  theatres,  auctioneers,  building  societies  and  loan 
societies,  licensing  [liquor],  markets  and  fairs) ;  (2)  order  and  good  government 
(cruelty  to  animals,  betting  and  gaming,  charities  and  charitable  trust  acts, 
inebriates,  police  other  than  Metropolitan  Police,  poor  law  and  vagrancy, 
prisons,  reformatories);  (3)  ecclesiastical  matters  (burial  law,  and  matters 
affecting  religious  denominations);  (4)  agriculture  and  land  (commons  and  en- 
closures, game  laws,  drainage,  improvements,  settled  land  acts,  distress  and 
tenure);  (5)  judiciary  and  minor  legal  matters  (coroners,  county  courts,  minor 
criminal  offences  [procedure,  definition,  and  punishment],  law  of  inheritance, 
intestates'  estates,  conveyancing  and  registration  of  land,  minor  torts,  trustees, 
guardians,  and  wards);  (6)  education — primary,  secondary,  and  university 
(except  Oxford,  Cambridge,  and  London);  (7)  local  government  and  municipal 
undertakings  (county  council  and  municipal  bills,  fire  brigades,  local  legislation 
— private  bills,  gas,  water,  and  electricity  undertakings — municipal  government, 


82         NEW  CONSTITUTIONS  OF  EUROPE 

will  of  the  central  government,  it  would  be  none  the  less 
intrinsically  federal  in  character. 

including  local  franchises) ;  (8)  public  health  (preventive  measures,  contagious 
diseases,  hospitals,  housing,  national  health  insurance,  lunacy  and  mental 
deficiency). 

To  the  United  Kingdom  it  was  proposed  specifically  to  reserve  control  over 
the  following  matters: 

(1)  the  Crown  and  matters  relating  thereto  (succession  to  the  Crown,  regency, 
civil  list,  Crown  properties,  treasure  trove);  (2)  peace  and  war;  (3)  navy,  army, 
and  air  services;  (4)  foreign  affairs  and  extradition;  (5)  dominions,  colonies, 
and  overseas  possessions;  (6)  dignities  and  titles;  (7)  treason  and  alienage;  (8) 
postal,  telegraph,  and  telephone  services;  (9)  submarine  cables;  (10)  wireless 
telegraphy;  (11)  aerial  navigation;  (12)  lighthouses,  buoys,  and  beacons;  (13) 
currency,  coinage,  legal  tender,  weights  and  measures;  (14)  trade  marks, 
patents,  and  copyrights;  (15)  regulation  of  trade,  banking,  and  commercial 
law  (law  of  agency,  banking,  census  of  production,  internal  commerce,  company 
law,  bills  of  exchange  and  negotiable  instruments,  insurance  companies,  sale  of 
poisons,  bankruptcy,  bills  of  sale,  sale  of  goods,  shipping  and  pilotage,  quaran- 
tine); (16)  fisheries,  forestry,  and  certain  agricultural  services  (forestry  commis- 
sion, ordnance  survey,  import  and  diseases  of  animals,  inland  and  sea  fisheries, 
wild  birds'  protection;  (17)  industrial  legislation  (employers'  liability  and  work- 
men's compensation,  factories  and  workshops,  industrial  disputes,  regulation  of 
hours  and  wages,  truck  acts,  law  of  master  and  servant,  unemployment  insur- 
ance, mines  and  quarries,  trades  unions,  friendly  societies,  old  age  pensions, 
development  commission);  (18)  railways  and  canals;  (19)  registration  and  cen- 
sus; (20)  food  regulations;  (21)  marriage  and  divorce;  (22)  vivisection;  (23) 
major  criminal  offences  (procedure,  definition,  and  punishment);  (24)  major 
civil  torts;  (25)  university  education  at  Oxford,  Cambridge,  and  at  London;  (26) 
Metropolitan  Police. 

It  was  proposed  that  power  over  the  following  matters  be  exercised  partly 
by  the  United  Kingdom  Parliament  and  partly  by  local  legislatures: 

(1)  corrupt  practices;  (2)  explosives;  (3)  harbours;  (4)  acquisition  of  land 
for  public  purposes;  (5)  transport  (roads  and  highways). 

It  was  proposed  that  all  other  matters  not  expressly  enumerated  in  these 
lists  should  be  reserved  to  the  United  Kingdom  Parliament. 


CHAPTER  V 
PROPORTIONAL  REPRESENTATION 

IN  ONE  respect  all  of  the  new  constitutions  agree:  they 
provide  for  the  application  of  the  principle  of  proportional 
representation.  It  is  possible  that  this  was  in  part  the 
result  of  the  provisions  of  the  special  peace  treaties  for  the 
protection  of  the  minorities.1  These  treaties,  however, 
contained  no  mention  of  such  matters  as  suffrage  and 
representation;  they  were  aimed  not  so  much  at  securing 
political  rights  as  at  guaranteeing  civil,  religious,  racial, 
linguistic,  and  educational  rights.  They  sought  equality 
before  the  law  rather  than  equality  at  the  polls.2  More- 
over, the  so-called  minorities  treaties  could  not  account 

l"  Among  the  achievements  of  the  Conference  a  not  unimportant  place  must 
be  assigned  to  a  series  of  separate  treaties  which  were  attached  to,  but  distinct 
from,  the  main  Treaties  of  Peace  with  Germany  and  the  other  enemy  States. 
The  parties  to  them  were,  on  the  one  side,  the  Principal  Allied  and  Associated 
Powers,  viz.,  America,  the  British  Empire,  France,  Italy,  Japan;  on  the  other 
side,  Poland,  Czecho-Slovakia,  the  Serb-Croat-Slovene  State,  Rumania,  and 
Greece.  These  treaties  provide  for  the  protection  of  racial,  linguistic,  or  reli- 
gious minorities  included  within  the  boundaries  of  the  specified  States;  they  also 
contain  provisions  for  certain  general  principles  affecting  commerce  and  inter- 
course, and  were  so  drafted  as  to  include  a  formal  confirmation  of  the  recog- 
nition of  Poland  and  Czecho-Slovakia  as  sovereign  States.  Almost  identical 
are  certain  provisions  which  have  been  introduced  into  the  Treaties  of  Peace 
with  Austria,  Hungary,  Bulgaria,  and  Turkey."  Temperley,  Ed.,  A  History  of 
the  Peace  Conference  of  Paris,  Vol.  V,  p.  112  (London,  1921).  Chapter  II  of  this 
Volume  contains  an  excellent  account  of  the  origin  and  purport  of  these  treaties. 

2"To  sum  up:  the  principle  on  which  the  Treaty  [with  Poland,  which  was  the 
model  for  all  the  minorities  treaties]  is  based  is  not  that  there  is  any  right  to 
impose  upon  an  existing  State  any  principle  of  government,  however  admirable, 
nor  does  it  lay  down  as  a  general  principle  that  it  is  incumbent  upon  any  State 
to  admit  to  the  full  rights  of  citizenship  all  inhabitants  of  its  territories  or  de- 
termine the  principles  on  which  nationalization  shall  be  allowed.  It  is  much 
more  limited.  What  the  Great  Powers  do  is  in  the  act  of  assigning  new  terri- 
tories to  an  already  existing  State,  or  constituting  a  new  State,  to  lay  down  con- 
ditions on  which  they  transfer  the  territories  to  such  State.  These  conditions 
are  that  all  bona  fide  inhabitants  of  the  territories  in  question  shall  receive  full 
rights  of  citizenship  and  that  in  the  future  no  distinction  shall  be  made  between 
citizens  in  consequence  of  difference  of  race,  religion,  or  language."  Ibid., 
Vol.  V,  p.  143. 

83 


Progress 
of  pro- 
portional 
representa- 
tion since 
the  war 


84 


NEW  CONSTITUTIONS  OF  EUROPE 


Rapid 
spread 

in  Europe 


Results  of 
majority  or 
plurality 
elections 


for  the  fact  that  during  or  since  the  war  a  number  of  the 
other  states  of  Europe  have  adopted  or  extended  schemes  of 
proportional  representation  under  their  old  constitutions. 
Indeed,  it  is  little  short  of  remarkable  that  this  plan  of 
electing  representative  assemblies,  having  made  only  a 
modicum  of  progress  throughout  the  sixty  or  more  years 
of  its  agitation,  should  suddenly  have  been  widely  accepted 
in  Europe  almost  without  disputation.  Apart  from 
certain  local  elections,  it  was,  prior  to  the  opening  of  the 
war,  applied  to  the  election  of  one  or  both  houses  of  the 
national  legislature  only  in  Denmark  (partial),  Belgium, 
Sweden,1  Bulgaria,2  Serbia,  and  Portugal,3  and  to  the  elec- 
tion of  the  lower  chamber  in  the  Grand-Duchy  of  Finland. 
During  the  war  it  was  extended  in  Denmark  and  adopted 
in  Holland.  Since  the  war  it  has  been  further  extended 
in  Denmark  and  adopted  in  Germany,  France  (modified), 
Italy,  Czechoslovakia,  Austria,  Jugoslavia,  Switzerland, 
Poland,  Danzig,  Esthonia,  and  Greece. 

The  disproportionalities  of  result  that  obtain  under  the 
usual  system  of  electing  one  or  several  representatives 
from  a  geographical  district  by  majority  or  plurality  vote 
are  so  well  known  as  to  require  no  recital  here.4  They  are 

JFor  a  description  of  the  Swedish  system,  not  outlined  in  this  chapter,  see 
Humphreys,  Proportional  Representation,  Appendix  III  (London,  1911);  E.  von 
Heidenstam,  "System  of  Proportional  Representation,"  in  Historical  and  Statis- 
tical Handbook,  published  by  order  of  the  Swedish  Government,  2d.  English  ed, 
1914  (J.  Guinchard,  Ed.). 

2An  electoral  law  of  1909  introduced  proportional  representation  into  Bulgaria 
for  departmental  and  municipal  elections.  In  1911  the  national  constitution 
was  revised,  and  an  experiment  in  proportional  representation  was  inaugurated 
in  the  two  departments  of  Trnvo  and  Philippopli.  This  was  extended  to  all 
elections  by  a  law  of  March  8,  1912.  For  a  description  of  the  simple  list  system 
adopted,  see  Blatter  fur  Wirtschaft-  und  Socialpolitik  (Switzerknd,  1914);  W.  S. 
Munroe,  Bulgaria  and  Her  People,  pp.  194—197. 

3Minority  representation  by  the  plan  of  limited  voting  was  adopted  in  Portu- 
gal by  a  law  of  August  8,  1901.  When  Portugal  became  a  republic  in  1911,  this 
system,  as  applied  to  the  lower  chamber  of  the  legislature,  was  retained  for 
some  of  the  districts,  and  proportional  representation  following  the  Belgian 
system  (see  below,  pp.  92  S.)  was  applied  to  the  four  largest  constituencies — two 
each  in  Lisbon  and  Oporto.  Senators  are  elected  by  a  plan  of  limited  voting. 

4For  illustrations,  see  Humphreys,  Proportional  Representation,  Chapter  II 
(London,  1911);  WUloughby  and  Rogers,  op.  cit.,  Chapter  XV. 


PROPORTIONAL  REPRESENTATION         85 


a  matter  of  common  knowledge,  being  in  fact  merely  a 
matter  of  common  fractions.  Over-representation  or 
under-representation  in  proportion  to  the  party  vote  is 
more  usual  than  otherwise.  Occasionally  an  actual 
minority  wins  a  majority  of  the  seats.  Indeed,  the  possi- 
bilities of  vagarious  results  are  almost  limitless.  More- 
over, wholly  apart  from  such  results,  it  is  perfectly  mani- 
fest that  even  where  a  balance  of  inequalities  as  among 
districts  operates  to  secure  for  a  party  its  approximate 
share  of  the  total  number  of  seats,  the  voters  of  the  party 
in  districts  that  it  fails  to  carry  have  no  representative  in 
the  assembly  for  whom  they  themselves  have  voted.  On 
the  contrary,  their  entire  district  is  in  theory  represented 
by  a  member  or  members  of  some  opposing  party.  Above 
all,  however,  if  political  parties  mean  anything  of  value, 
they  imply  a  grouping  of  the  voters  on  the  basis  of  opinions 
and  beliefs.  But  the  obvious  fact  is  that  a  grouping  of 
the  people  for  purposes  of  representation  on  the  basis  of 
their  places  of  residence  results  only  to  a  limited  extent, 
if  at  all,  in  grouping  them  with  reference  to  their  opinions 
and  beliefs. 

In  view  of  the  complexity  of  human  nature  and  of  hu- 
man society,  no  doubt  every  scheme  of  representation 
involves  something  of  artificiality.  Inevitably  it  smacks 
more  of  device  than  of  principle.  But  upon  the  commonly 
accepted  hypotheses  of  politics,  the  logic  of  proportional 
representation  is  fairly  unavoidable.  It  is  usually  as- 
sumed, for  example,  that  the  voters  of  a  country  are 
divided  (or  would  divide  if  they  were  given  adequate 
opportunity)  into  two  or  more  relatively  permanent  groups 
each  united  by  a  common  set  of  political  beliefs  and 
opinions,  or  upon  a  definite  program  of  political  action, 
or  upon  both  opinions  and  program.1  It  is  for  the  most 

'"  Democracy  really  means  nothing  more  nor  less  than  the  rule  of  the  whole 
people  expressing  their  sovereign  will  by  their  votes."  Bryce,  Modern  Democ- 
racies, Vol.  I,  p.  viii  (New  York,  1921).  In  this  definition  there  is  a  clear  as- 
sumption of  a  free  and  rational  "will." 


Faults  of 
geographical 
district 
groups 


Common 
assumptions 
of  politks 


86 


NEW  CONSTITUTIONS  OF  EUROPE 


Assumptions 
do  not 
correspond 
to  facts 


part  assumed,  moreover,  that  in  the  formation  and  activi- 
ties of  these  groups  the  voters  act  in  purely  voluntary  and 
rational  fashion.  And  it  is  further  assumed  that  the 
purpose  of  representative  government  is  to  reflect  the 
opinions  and  effectuate  the  program  of  a  majority  of 
the  voters.1  If  happily  an  absolute  majority  form  them- 
selves into  a  single-minded  political  group,  this  task  ought 
to  be  relatively  simple;  but  if  the  people  divide  into  a 
number  of  more  or  less  irreconcilable  and  contending 
groups,  the  task  of  compromise  in  the  matter  of  belief, 
opinion,  and  program  is  obviously  more  difficult. 

These  are  some  of  the  basic  assumptions  of  politics  in 
modern  democracies.  A  complete  consideration  of  their 
relation  to  facts  would  necessitate  a  detailed  discussion  of 
the  origin,  the  purposes,  and  the  operative  methods  of 
political  parties.  Such  a  discussion  is  impossible  here. 
It  is  sufficient  to  say,  perhaps,  that  in  consideration  of 
the  number  and  complexity  of  the  problems  of  modern 
government,  it  is  open  to  question  whether  the  people  of 
any  sizeable  country  do  or  can  divide  themselves  on  the 
basis  of  common  opinions  into  two  or  three,  or  for  that 
matter  any  small  number,  of  more  or  less  permanent  and 
cohering  groups.  If  they  are  to  reach  practical  problems, 
group  programs  must  of  necessity  be  somewhat  elabo- 
rate in  character,  and  their  very  elaboration  will  of  like 
necessity  weaken  the  foundation  of  common  opinions 
upon  which  the  group  presumably  rests.  It  may  be 
argued,  indeed,  that  the  complex  character  of  modern  life, 
with  its  rapidly  changing  and  diversified  needs  and 
interests,  offers  no  useful  place  for  the  large  and  perma- 
nent political  party.  Certain  it  is  that  a  union  of  members 
upon  the  basis  of  genuine  beliefs  and  a  fairly  stated  pro- 
gram of  action  is  by  no  means  a  universal  characteristic 


'But  see  the  distinction  that  is  sometimes  drawn  between  "delegative"  and 
"representative"  government.  Ireland,  Democracy  and  the  Human  Equation 
(New  York,  1921). 


PROPORTIONAL  REPRESENTATION         87 

of  political  parties.  The  more  rigid  the  principles  and  the 
program  of  a  party  and  the  sharper  its  discipline,  the 
more  apt  is  the  party  to  split  upon  the  rocks  of  dissension 
as  its  numbers  increase.  The  larger  the  party,  the  more 
necessary  it  is  that  it  should  have  loose  principles,  a  vague 
program,  and  lax  discipline.  This  means  that  it  rep- 
resents in  less  degree  any  genuine  division  of  the  voters. 
Thus  it  happens  that  the  range  and  intricateness  of  the 
problems  of  modern  government  play  into  the  hands  of 
party  leaders  who  naturally  desire  to  increase  the  party 
membership.  The  result  is  attenuation  of  program  and 
purpose,  with  a  consequent  weakening  of  the  foundation 
of  common  opinion  upon  which  the  group  in  theory  rests. 
In  order  to  bolster  up  this  crumbling  foundation  resort 
is  had  to  the  agency  of  organization.  Party  becomes  an 
end  rather  than  a  means.  The  group  must  be  preserved 
whether  or  not  it  has  sufficient  intellectual  vitality  and 
purpose  to  warrant  preservation.  In  consequence  it  is 
sometimes  difficult  to  say  whether  this  or  that  group  is 
held  together  chiefly  by  common  opinions  or  by  party 
organization  and  activity. 

Lord  Bryce  was  not  alone  in  thinking  that  party 
organization  "has  rendered  some  services,  but  far  greater 
disservices,"  that  "it  is  possibly  the  source  of  more  evil 
than  good."1  Another  distinguished  commentator,  Mr. 
Ostrogorski,  has  expressed  the  opinion  that  the  day  has 
passed  when  large  and  permanent  political  parties  can 
perform  any  useful  role  in  democracies.  Arguing  for  their 
abolition  and  for  the  substitution  of  a  scheme  of  imperma- 
nent, single-issue  organizations,  he  says: 

Party  as  a  wholesale  contractor  for  the  numerous  and  varied 
problems,  present  and  to  come,  should  give  place  to  special 
organizations,  limited  to  particular  objects  and  forming  and 
reforming  spontaneously,  so  to  speak,  according  to  the  changing 
problems  of  life  and  the  play  of  opinion  brought  about  thereby. 

^Modern  Democracies,  Vol.  II,  p.  453  (New  York,  1921). 


Weakening 
the 

theoretical 
foundation 
of  parties 


Substitute 

of 

organization 


Ostrogorski 
opposes 
permanent 
parties 


88         NEW  CONSTITUTIONS  OF  EUROPE 

Citizens  who  part  company  on  one  question  would  join  forces  on 
another. 

The  basic  conditions  for  the  corruption  and  tyranny  engen- 
dered by  the  present  party  regime  will  disappear  with  their 
material  foundation,  which  is  permanence  of  organization,  and 
their  moral  foundation,  which  is  the  conforming  habit  of  the 
party  adherents.  The  temporary  and  special  character  of  the 
parties  created  on  the  new  method  will  not  permit  of  the  enroll- 
ment and  maintenance  of  those  standing  armies  with  whose 
help  power  was  won  and  exploited.  On  the  other  hand,  party 
"regularity"  will  no  longer  have  an  object:  permanent  homage 
is  not  to  be  paid  to  what  is  transitory.  No  longer  able  to  rely 
on  sentimental  devotion  to  its  name  and  style,  party  will  have, 
in  spite  of  itself,  so  to  speak,  to  rest  on  the  adhesion  of  minds 
and  consciences  to  something  well  defined,  to  a  clearly  specified 
cause  identified  with  a  public  interest.  Enlisted  in  the  exclu- 
sive service  of  that  cause,  party  organization  will  revert  to  its 
function  of  means  and  will  cease  to  be  an  end;  formerly  a  tyran- 
nical master,  it  will  have  to  become  a  docile  servant.  The 
problem  contained  in  these  propositions  is  certainly  a  most 
serious  and  complex  one  and  requires  thorough  scrutiny.1 

But  per-  But  whatever  may  be  thought  of  the  wisdom  or  un- 

wisdom, the  effectiveness  or  ineffectiveness,  of  permanent 

exist  political  parties,  they  nevertheless  exist  and  must  be 

reckoned  with  in  every  democratic  country.  The  two- 
party  system,  however  unreasonable  and  illogical  it  may  be 
in  some  of  its  aspects,  has  unquestionable  advantages 
over  a  multiple  party  system  in  point  of  simplicity,  re- 
sponsibility, and  efficiency.  It  has  been  urged  against 
proportional  representation  that  it  would  tend  to  break  up 
such  a  system;  and  probably  there  is  considerable  justifi- 
cation for  the  fear  that  it  would  do  so.  But  to  oppose 
proportional  representation  on  such  ground  is  to  exalt 
expediency  over  principle.  It  is  to  admit  that  the  two- 
party  system  perdures,  not  because  the  voters  desire  to 
divide  into  no  more  than  two  groups,  but  because  they  are 
offered  no  ready  avenue  of  escape  from  such  division.  It 

'Ostrogorski,  Democracy  and  the  Party  System,  pp.  441,  442  (New  York,  1910). 
For  a  more  elaborate  discussion  of  this  whole  topic  see  his  larger  work  Democ- 
racy and  the  Organization  of  Political  Parties,  Vol.  II,  pp.  651-695. 


PROPORTIONAL  REPRESENTATION    89 


is  to  confess  that,  contrary  to  all  demagogic  profession, 
the  cohering  agency  of  these  groups  is  not  so  much  common 
political  opinions  as  it  is  something  else — a  combination 
no  doubt  of  tradition,  of  system,  of  organization,  of  size,  of 
legal  status,  of  civic  indifference,  and  above  all  perhaps  of 
shrewdness  on  the  part  of  party  managers  in  not  balking 
active  and  widespread  public  opinion  too  boldly  or  too 
long  and  in  keeping  the  two  parties  somewhat  apart  on 
public  questions  but  not  too  far  apart. 

Most  of  the  states  of  Europe,  new  or  old,  did  not  have  to 
consider  the  possible  effect  of  proportional  representation 
upon  the  two-party  system.  Such  a  system  was  unknown. 
In  practically  every  country  the  voters  were  already 
divided  actually  or  potentially  into  three  or  more  groups. 
From  Right  to  Left  there  ranged  a  series  of  minority 
parties,  with  the  resulting  necessity  of  securing  majority 
action  in  the  legislative  body  only  by  the  unstable 
bloc,  or  coalition,  of  two  or  more  of  them.  Govern- 
ment by  coalition  being  inevitable,  the  introduction  of 
proportional  representation  was  inexorably  logical.  More- 
over, the  Socialist  parties  had  long  advocated  the  system; 
and,  by  and  large,  the  Socialists  of  varying  hues  were 
in  nearly  every  state  the  most  important  minority. 

Innumerable  schemes  have  been  devised  for  accom- 
plishing the  purposes  of  proportional  representation.1  But 
none  of  the  new  constitutions  goes  further  than  to  require 
that  elections  shall  be  held  according  to  the  principle  of 
proportional  representation.  Not  even  in  broad  outline 
do  they  prescribe  any  specific  plan.  The  general  scheme  as 
well  as  its  details  are  left  to  be  supplied  by  electoral  law. 
In  view  of  the  fact,  however,  that  the  several  schemes 
constitute  integral  and  important  parts  of  the  actual 


The  two- 
party 
system 


Multiple 
parties  in 
European 
states 


Constitu- 
tions 
establish 
principle  of 
proportional 
representa- 
tion 


'For  a  discussion  of  some  of  them  see  Humphreys,  op.  cit.;  Commons,  Pro- 
portional Representation  (New  York,  1912);  Williams,  The  Reform  of  Political 
Representation  (London,  1918). 


90 


NEW  CONSTITUTIONS  OF  EUROPE 


The 

Danish 

system 


Recent 
extension  in 
Denmark 


working  plans  of  government,  and  that  they  cannot  be 
studied  from  the  constitutions  themselves,  it  seems  ad- 
visable, even  at  the  necessity  of  some  tedious  detail,  to 
describe  as  briefly  as  possible  one  or  two  of  the  old  and  a 
number  of  the  new  schemes  that  have  been  adopted. 

The  Danish  system  deserves  mention,  not  only  because 
in  its  full  application  it  is  a  very  recent  development,  but 
also  because  it  was  in  Denmark  in  1855  that  the  earli- 
est scheme  of  proportional  representation  was  actually 
launched.  It  was  first  applied  to  the  popular  election  of 
the  single-chambered  Parliament  (Rigsraad)  of  the  King- 
dom of  Denmark,  Slesvig,  and  Holstein.  But  such  whole- 
hearted application  of  the  plan  was  shortlived.  When 
Slesvig  and  Holstein  were  lost  to  Prussia  and  Austria,  the 
Danish  constitution  of  1863,  as  well  as  that  of  1867,  re- 
tained proportional  representation  only  for  the  indirect 
election  of  the  upper  chamber  (Landsting).  Electoral 
colleges  were  chosen  in  each  constituency  by  the  usual 
majority  method;  and  these  colleges  used  proportional 
representation  (by  the  single  transferable  vote)  in  electing 
the  members. 

In  this  limited  form  proportional  representation  re- 
mained static  in  Denmark  for  more  than  half  a  century. 
At  length,  in  1908,  it  was  extended  to  municipal  elections. 
And  in  1915  it  was  adopted  in  diluted  form  from  the  elec- 
tion of  members  of  the  lower  house  (Folketing)  of  Parlia- 
ment; but  the  scheme  was  a  hybrid — a  mongrel  com- 
promise with  the  system  of  single  member  constituencies.1 
Employed  in  the  parliamentary  election  of  April  22,  1918, 
it  disclosed  serious  disadvantages.  In  the  spring  of  1920 
electoral  reform  was  still  on  the  tapis  in  Denmark  when  a 
ministerial  crisis  arose  over  the  Slesvig  question  and  a  new 
parliamentary  election  was  ordered.  But  the  Socialists 


24  Copenhagen  members  were  elected  by  proportional  representation; 
93  members  were  elected  in  single  member  districts;  and  23  additional  seats 
were  distributed  so  as  to  secure  more  approximate  proportionality. 


PROPORTIONAL  REPRESENTATION        91 

refused  to  participate  in  another  election  under  the  law  of 
1915,  which  they  claimed  would  force  them  into  unwelcome 
alliance  with  the  Radicals.  Through  the  medium  of  a 
general  strike  they  succeeded  in  compelling  the  formation 
of  a  "business  ministry"  which  undertook  to  carry  a  new 
election  law  through  the  old  parliament.  Only  a  few  days 
were  given  to  considering  the  law  of  April  11,  1920;  but  in 
spite  of  this  haste  and  of  the  turbulence  of  the  period  it 
appears  to  be  a  fairly  well-conceived  scheme.1 

Apart  from  the  Faroes,  which  return  one  member,  Danish 
Denmark  (including  Slesvig)  is  divided  into  23  electoral  law  of 
areas  (3  Copenhagen  and  20  county  areas),  and  these 
areas  are  divided  into  117  nominating  districts.  Each 
area  returns  primarily  one  member  for  each  of  its  nominat- 
ing districts.  There  are  31  additional  seats  for  distribu- 
tion to  the  several  parties,2  making  a  total  of  149  members. 
The  names  of  the  nominees  are  placed  upon  the  ballot  in 
party  lists.  In  each  nominating  district  the  name  of  the 
party  nominee  from  the  district  is  placed  first  in  the  list 
and  is  printed  in  heavy  type.  The  other  names  follow 
either  in  an  order  determined  by  the  party  managers  or 
in  alphabetical  order.  The  voter  may  cast  his  ballot  for 
the  party  list  as  it  stands,  or  he  may  mark  the  name  of  a 
particular  candidate,  which  operates  to  cast  his  vote  for 
the  list  as  well  as  to  indicate  his  first  preference.  To  this 
extent,  therefore,  the  voters  may  alter  the  order  of  prefer- 

*For  a  description  of  the  law  and  some  comments  on  its  operation  at  the 
elections  of  April,  July,  and  September,  1920,  see  Zeuthen,  "Denmark — A  Com- 
plete Victory  for  P.  R.,"  Representation,  No.  38,  December,  1920,  pp.  168  ff. 

"The  Chief  Electoral  Officer  "first  divides  148  seats  (i.  e.,  'ordinary  '  and  31 
'additional'  seats)  among  the  parties  in  strict  proportion  to  their  vote-totals 
for  the  whole  country.  The  difference  between  the  proportionate  share  as  cal- 
culated and  the  number  of  'ordinary'  seats  already  gained  gives  the  number 
of  'additional'  seats  for  any  party.  The  distribution  is  subject  to  the  further 
condition  that  six  must  fall  to  the  region  of  the  capital,  ten  to  the  Islands,  and 
fifteen  to  Jutland.  The  Chief  Electoral  Officer  determines  according  to  a  pre- 
scribed method  the  number  of  additional  seats  each  party  shall  hold  in  each  of 
the  three  regions  mentioned,  and  further  allots  the  addition-seats  obtained  by 
each  party  to  the  P.  R.  area  in  which  the  party  has  the  highest  proportion  of 
unrepresented  votes."  Ibid.,  p.  177. 


92 


NEW  CONSTITUTIONS  OF  EUROPE 


Results  of 

1920 

election 


The 

Belgian 

system 


ence  determined  by  the  party  managers1  as  well  repudiate 
the  first-place  position  given  to  the  local  nominee.  The 
distribution  of  seats  to  the  several  parties  within  each  elec- 
toral area  is  made  in  accordance  with  the  so-called  d'Hondt 
system,2  which,  as  will  appear,  is  also  used  in  many  other 
countries  of  Europe.  In  the  election  which  was  held  on 
April  26,  1920,  the  following  results  were  obtained:  The 
Liberals,  with  350,407  votes,  secured  48  seats;  the  Social- 
ists, with  299,892  votes,  42  seats;  the  Conservatives,  with 
201,031  votes,  28  seats;  the  Radicals,  with  122,144  votes, 
17  seats;  the  Trade  Party  (Conservatives),  with  29,279 
votes,  4  seats.3  The  proportionality  was  almost  exact. 

The  Danish  scheme  of  1920  was  in  many  of  its  essentials 
modeled  after  that  of  Belgium.     Indeed,  it  seems  worth 

*By  an  amendment  of  June  28,  1920,  a  party  in  any  county  area  may  decide 
not  to  declare  any  order  of  precedence,  in  which  case  the  elected  candidates  of 
the  party  are  those  who  receive  the  largest  number  of  individual  votes. 


system  is  illustrated  by  Humphreys,  op.  cit.,  pp.  178,  179,  as  follows: 
"Let  it  be  assumed  that  three  lists  have  been  presented;  that  they  have  obtained 
8,000,  7,500,  and  4,500  votes  respectively,  and  that  there  are  five  vacancies 
to  be  filled.  The  total  number  of  votes  for  each  list  is  divided  successively  by 
the  numbers  1,  2,  3,  and  so  on,  and  the  resulting  numbers  are  arranged  thus: 


List  No.  1. 
8,000 
4,000 
2,666 


List  No.  2. 
7,500 
3,750 
2,500 


List  No. 
4,500 
2,250 
1,500 


"The  five  highest  numbers  (five  being  the  number  of  vacancies  to  be  filled) 
are  then  arranged  in  order  of  magnitude  as  follows: 

8,000 
7,500 
4,500 
4,000 
3,750 

"The  lowest  of  these  numbers,  3,750,  is  called  the  'common  divisor'  or  the 
'electoral  quotient,'  and  forms  the  basis  for  the  allotment  of  seats.  The  number 
of  votes  obtained  by  each  of  the  lists  is  divided  by  the  'common  divisor'  thus: 

8,000  divided  by  3,750  =  2  with  a  remainder  of  500 

7,500       "        "  3,750=2 

4,500       "        "  3,750  =  1  with  a  remainder  of  750 

"The  first  list  contains  the  'electoral  quotient'  twice,  and  the  second  twice, 
and  the  third  once,  and  the  five  seats  are  allotted  accordingly.  Each  party 
obtains  one  representative  for  every  quota  of  voters  which  it  can  rally  to  its 
support,  all  fractions  of  'quotas'  being  disregarded." 

'Figures  taken  from  Representation,  No.  36,  May,  1920. 


while  to  outline  the  Belgian  plan  in  brief  detail  in  view  of 
the  fact  that  it  is  the  oldest  thoroughgoing  system  in 
Europe  and  in  some  respects  may  be  regarded  as  the 
parent  of  many  of  the  other  systems. 

Proportional  representation  was  applied  to  the  Belgian 
House  of  Representatives  and  part  of  the  Senate  by  an  elec- 
toral law  of  December  29,  1899.  Although  this  law  has 
been  amended  a  number  of  times  since  that  date,  the 
latest  revision  being  that  of  1919,1  and  although  the  prin- 
ciple of  proportional  representation  was  not  written  into 
the  constitution  until  the  revision  of  1921,  the  original  plan 
has  not  been  altered  in  any  important  particular.2  The 
country  is  divided  into  nine  provinces;  in  each  of  these  3 
or  more  Senators  are  elected  by  the  provincial  councils  by 
a  plan  of  proportional  representation.  The  provinces  are 
divided  into  arrondissements ;  and  another  group  of  Sen- 
ators are  popularly  elected,  in  varying  numbers,  either 
from  single  arrondissements  or  from  two  arrondissements 
joined  for  this  purpose.  A  third  group  are  elected  by 
these  two  groups,  proportional  representation  being  also 
used  here.  All  the  Representatives  are  elected  by  the 
voters  of  the  several  arrondissements,  the  number  varying 
from  3  to  26. 

In  the  popular  elections  candidates  are  nominated  in 
lists,  the  order  being  determined  by  the  party  or  group  that 
makes  the  nomination.  The  elector  casts  his  vote  either 
for  a  list  as  such  (vote  de  liste),  which  means  that  he  also 
approves  of  the  preferences  indicated  by  the  order  of 
names,  or  for  a  single  candidate  on  a  list  (vote  nominatif), 


1Dispositions  du  code  Electoral  modifiees  et  completees  par  lea  loia  du  9  Mai  et 
des  17  et  22  Octobre  1919. 

sFor  discussions  of  the  Belgian  scheme  see  Georges  Lachapelle,  La  reprexenta- 
tion  proportionnelle  en  France  et  en  Belgique  (1911);  T.  Petit  jean,  La  representa- 
tion  proportionnelle  devanl  les  chambres  franyaises  (1915);  F.  Goblet  d'Alviella, 
La  representation  proportionnelle  en  Belgique;  La  representation  proportionnelle 
integrate  (1910);  Barriety,  La  representation  proportioned  en  Belgique  (1906); 
Dubois,  La  representation  proportionnelle  soumise  a  I' experience  beige  (1906); 
Humphreys,  op.  cit.,  Chapter  VIII  and  pwsim. 


In  operation 
since  1899 


Distribution 
and  assign- 
ment of 
seats 


94         NEW  CONSTITUTIONS  OF  EUROPE 

which  means  that  he  votes  for  the  entire  list  but  that  his 
first  preference  is  for  a  candidate  who  has  not  been  given 
first  place  on  the  list.  The  party  vote  is  obtained  by 
adding  the  ballots  cast  for  the  list  and  the  ballots  marked 
for  any  candidate  of  the  list.  The  distribution  of  seats  is 
made  according  to  the  d'Hondt  system,  which  originated 
in  Belgium.  The  assignment  of  seats  to  the  candidates  is 
made  with  reference  to  the  order  of  names  upon  the  list  as 
well  as  with  reference  to  the  individual  votes  polled  by  the 
several  candidates.1  Provision  is  also  made  for  the  elec- 
tion at  the  same  time  and  in  the  same  manner  of  sub- 
stitutes (suppleants) .  In  the  event  of  a  vacancy  in  the 
office  of  a  Representative  or  Senator  during  his  term,  his 
place  is  taken  by  the  first  substitute  on  his  party  list  in  his 
election  unit. 

Results  This    thoroughgoing   Belgian   scheme   of   proportional 

of  the  representation  has  had  longer  trial  than  any  other  in 

Europe.  On  the  whole  it  has  had  salutary  results,  not 
the  least  of  which  was  to  lessen  the  sharp  and  somewhat 
bitter  division  of  the  Flemish  and  Walloon  districts  be- 
tween the  Catholic  and  the  Liberal  parties.  It  is  not 
without  its  flaws  and  its  critics.  Owing  to  the  fact  that 
many  of  the  election  units  are  small  (returning  only  two, 

'Taking  the  same  example  as  that  given  above  (page  92,  note  2),  Humphreys 
says:  "Assume  that  List  No.  1  consists  of  three  candidates,  A,  B,  and  C,  ar- 
ranged in  the  order  named,  and  that  the  8,000  supporters  of  the  list  have  given 
their  votes  as  follows : 

Votes  at  the  head  of  the  List      .      .  '  .      .      .      .      .  4,000 

Preferential  votes  for  A 500 

"       "    B 500 

'    C 3,000 

Total        .      .     ...'.      .  8,000 

"Candidate  A,  being  the  first  in  order  on  the  list,  has  the  first  claim  on  the 
votes  recorded  for  the  list.  The  electoral  quotient  is  3,750,  and  A's  total  500 
is  raised  to  this  number  by  the  addition  of  3,250  votes  taken  from  those  recorded 
for  the  list.  This  secures  his  election,  and  there  remain  750  list  votes  which  are 
attributed  to  candidate  B,  this  candidate  being  second  in  order  on  the  list.  B, 
however,  also  had  500  votes  recorded  against  his  name,  and  his  total  poll  there- 
fore amounts  to  1,250.  But  candidate  C  has  obtained  3,000  votes,  all  recorded 
for  himself  personally,  and  as  this  total  exceeds  B's  total  of  1,250,  C  would  be 
declared  elected."  Humphreys,  op.  cit.,  p.  181. 


PROPORTIONAL  REPRESENTATION 


95 


three,  or  four  members),  and  to  the  fact  that  no  attention 
is  paid  to  surpluses,  there  being  no  provision  for  a  final  na- 
tional distribution  of  seats  based  on  compounded  surpluses, 
representation  is  seldom  if  ever  exactly  proportional  to  the 
vote.  The  limited  power  that  is  given  to  the  voter  in  the 
matter  of  expressing  his  preferences  among  candidates  has 
unquestionably  played  into  the  hands  of  the  party  ma- 
chines; the  actual  choice  of  candidates  almost  invariably 
follows  the  predetermined  choice  of  party  managers  as  rep- 
resented in  the  order  of  names  upon  the  ballot.  While 
interest  in  politics  has  been  increased,  party  discipline  has 
also  been  quickened. 

But  proportional  representation  is  gaining,  not  losing, 
in  Belgium.  In  1895  it  was  applied  in  diluted  form  to 
communal  elections.  By  a  law  of  February  19,  1921, 
adopted  almost  unanimously,  it  was  applied  in  full  vigor 
to  these  as  well  as  to  provincial  elections.1  The  local  elec- 
tion scheme,  however,  differs  in  some  respects  from  the 
national  plan,  especially  in  that  the  elector  may  vote  for 
as  many  candidates  as  there  are  offices  to  be  filled  and 
may  "  split "  his  ticket.2 

J"  Proportional  representation  is  applied  in  Belgium  to-day  to  the  election 
of  all  our  political  assemblies — the  two  chambers  of  our  parliament  (Senate  and 
House  of  Representatives),  our  provincial  councils,  and  our  communal  councils. 
.  .  .  It  is  only  in  connection  with  the  naming  of  the  executive  committees 
in  the  provinces  (deputations  permanentes)  and  in  the  communes  (college  des 
echevins)  that  the  Belgian  Parliament  hesitated  to  apply  P.  R."  Leon  Dupriez, 
"P.  R.  in  Belgium,"  Proportional  Representation  Review,  January,  1922,  p.  17. 

"'The  law  of  February  19, 1921.  established  a  new  system  which  differs  from 
that  which  was  in  force  during  the  operation  of  the  law  of  September  12, 1895, 
and  from  that  which  the  Electoral  Code  has  provided  for  legislative  elections. 

"In  principle,  the  elector  may  vote  for  as  many  candidates  as  there  are  seats 
to  be  conferred. 

"  He  may  vote  for  all  the  candidates  of  one  list  accepting  the  order  in  which 
the  candidates  are  written  upon  the  ballot.  In  this  case,  he  votes  in  the  space 
at  the  head  of  that  list. 

"He  may  vote  for  one  or  for  several  of  the  candidates  of  a  single  list.  In 
this  case,  he  votes  in  the  spaces  which  are  found  at  the  side  of  the  names  of  the 
candidates. 

"He  may  'split  his  ticket'  (panacher),  that  is  to  say,  vote  for  candidates  of 
different  lists  (for  as  many  as  there  are  seats  to  be  Blled).  In  this  case,  he  marks 
his  vote  at  the  side  of  the  names  of  candidates  that  he  intends  to  favor."  Del- 
croix,  Guide  pratique  pour  lea  flections  communoles,  p.  28  (Brussels,  1921). 


Recent 
extension 
in  Belgium 


96 


NEW  CONSTITUTIONS  OF  EUROPE 


The 

Finnish 

system 


"Compacts" 
of  lists 


Proportional  representation  was  made  applicable  to  the 
Diet,  or  Landtag,  of  the  Grand-Duchy  of  Finland  by  an 
electoral  law  of  July  20,  1906,  which  was  enacted  in  con- 
junction with  the  organic  law  of  the  Landtag  of  the  same 
date.1  The  constitution  of  the  Republic  of  Finland,  of 
July  17,  1919,  did  not  in  any  respect  change  the  system 
that  had  previously  been  in  force.  The  single  chambered 
legislature  (in  Finnish,  Eduskunta;  in  Swedish,  Riksdag) 
consists  of  200  members  elected  in  16  districts.  The  dis- 
trict of  Lapland  has  only  one  member;  the  other  districts 
return  from  6  to  23  members  each,  the  average  being  13. 
Although  the  districts  are  large,  no  list  may  contain  more 
than  three  names;  and  the  voter  may  vote  for  only  one 
list,  although  he  may  change  the  order  in  which  the  names 
have  been  presented  by  the  party  managers.  Manifestly 
a  sizeable  party  in  a  district  returning  13  or  17  or  27  mem- 
bers could  not  reasonably  be  restricted  to  the  nomination 
of  three  candidates.  Permission  is  therefore  given  to 
combine  these  lists  of  three  names  into  groups  known 
as  "compacts."  In  other  words,  the  party  puts  up  a 
series  of  lists,  containing  in  all  at  least  as  many  candidates 
as  it  can  hope  to  elect  in  the  district.  The  idea  seems 
to  be,  not  only  that  small  groups  of  voters,  perhaps  united 
upon  a  transitory  issue  or  a  matter  of  local  or  specific 
interest,  may  nominate  a  list  unaffiliated  with  any  regular 
party,  but  also  that  there  may  be  a  degree  of  mobility 
and  of  consideration  of  local  or  special  interests  within  the 
party  ranks.  But  in  view  of  the  fact  that  a  name  may  be 
placed  in  any  number  of  lists  whether  within  or  without  a 
particular  compact  (although  the  voter  may  not  vote  in 
more  than  one  list  and  although  no  compact  may  contain 
more  different  names  than  there  are  seats  to  be  filled) ,  it  is 
needless  to  say  that  this  flexibility  lends  itself  more  read- 
ily to  party  manipulation  than  to  the  encouragement  of 


1For  a  brief  account  of  events  which  led  up  to  these  enactments,  see  below, 
Chapter  XIX. 


PROPORTIONAL  REPRESENTATION        97 


independent  or  insurgent  candidacies.  An  unpopular  can- 
didate fitted  into  a  number  of  lists  headed  by  popular 
candidates  may  easily  be  carried  to  victory.  For  the  voter 
casts  his  ballot,  not  only  specifically  for  the  three  candi- 
dates (usually  in  the  named  order,  although  he  may  change 
the  order),  but  incidentally  also  for  the  entire  compact. 

The  method  of  counting  the  vote  and  of  distributing 
seats  is  almost  as  complicated  to  describe  as  it  is  to  ac- 
complish.1 The  details  cannot  be  set  forth  here.2  Suf- 
fice it  to  say  that  there  is  one  calculation  to  determine  the 
order  of  the  candidates  within  the  list,  another  to  deter- 
mine the  order  of  candidates  within  the  compact,  and  a 
third  to  determine  the  order  of  candidates  within  the 
district,  which  in  effect  determines  the  distribution  of 
seats.  "In  its  internal  party  arrangement,"  says  Mr. 
Humphreys,  "the  Finnish  system  shows  boldness,  orig- 
inality, and,  it  must  be  added,  no  little  complexity  of 
procedure."  But,  he  adds,  it  "gives  a  greater  freedom 
to  the  elector  than  the  Belgian  system." 

The  Constituent  Assembly  that  drafted  the  new  Ger- 
man constitution  was  elected  on  January  19,  1919,  under 
a  system  of  proportional  representation.3  According  to 
a  "Cabinet"  decree  of  November  30,  1918,  the  several 

irThe  results  of  elections  are  not  usually  announced  for  two  or  three  weeks. 

*For  a  full  description  see  Humphreys,  op.  cit.,  pp.  314  ff.;  J.  Deck  and  G.  von 
Wendt,  "La  representation  proportionnelle  et  la  recente  loi  electoral  de  grand- 
duche  de  Finland,"  Cahiers  ae  la  Quinzaine  (Paris),  9  serie,  4  au  7  cahier,  cin- 
quieme  cahier  de  la  neuvieme  serie.  See  also  British  Blue  Book,  Report  of  the 
Royal  Commission  Appointed  to  Enquire  into  Electoral  Systems,  1910. 

'Proportional  representation  Mas  not  wholly  unknown  in  Germany  before  the 
revolution.  It  was  applied  to  the  election  of  certain  members  of  the  lower 
house  in  Wiirttemberg  by  a  law  of  July  16,  1906,  and  to  the  election  of  the  un- 
paid members  of,  municipal  councils  in  cities  of  over  10,000  inhabitants  by  the 
WUrttemberg  municipal  code  of  July  28,  1906.  In  the  same  year  it  was  applied 
to  the  election  of  152  of  the  160  members  of  the  lower  house  of  the  legislature 
in  the  free  city  of  Hamburg.  In  1908  proportional  representation  was  intro- 
duced in  Bavaria  as  applied  to  municipal  councilors.  It  was  likewise  applied 
to  municipal  councils  in  Oldenburg  in  1907  (where,  however,  it  was  optional), 
and  in  Baden  in  1910.  In  1913  a  proposal  to  use  proportional  representation  in 
electing  members  of  the  Imperial  Reichstag  was  defeated  in  that  body  by  only 
one  vote.  In  February,  1918,  as  an  act  of  death-bed  repentance,  the  Bundes- 
rat  approved  and  forwarded  to  the  Reichstag  a  bill  increasing  the  size  of  the 


Complicated 
method  of 
counting 


The  German 
system  of 
1919 


98 


NEW  CONSTITUTIONS  OF  EUROPE 


parties  were  empowered  to  nominate  by  petition  in  each 
electoral  district  or  circumscription  a  number  of  candi- 
dates not  to  exceed  the  number  of  delegates  assigned  to 
the  district.1  The  names  of  the  candidates,  arranged  in 
the  order  determined  by  the  nominating  party,  appeared 
upon  the  ballot  in  their  respective  groups  or  lists.  The 
voter  cast  his  ballot  primarily  for  a  party  list.  The 
count  and  distribution  of  seats  followed  the  d'Hondt  sys- 
tem. 

In  its  operation  at  the  election  this  plan  of  proportional 
representation  did  not  give  complete  satisfaction.  Chief 
objection  was  raised  to  the  matter  of  combinations  of 
lists,  which  operated  to  the  disadvantage  of  the  parties 
of  no  compromise.  It  was  demonstrated  also,  as  the 
Belgian  scheme  had  disclosed,2  that  the  d'Hondt  method, 
taking  no  account  whatever  of  "remainders,"  worked  to 
the  advantage  of  the  larger  parties.  In  addition  to  this 
it  was  urged  that  the  circumscriptions,  or  election  dis- 
tricts, returning  an  average  of  eleven  deputies  each,  were 
far  too  large.3 

In  January,  1920,  the  Ministry  put  forward  for  discus- 
sion three  different  proposals  for  an  application  of  what 
came  to  be  known  in  Germany  as  the  Baden  system  of 
proportional  representation.  Article  22  of  the  new  Baden 
constitution  provided  that  "each  party  or  group  of  elec- 
tors shall  have  one  deputy  for  each  10,000  votes  cast  for 
its  list  of  candidates.  The  votes  remaining  unused  in 
each  circumscription  shall  be  totaled  for  the  entire  country 
and  distributed  in  accordance  with  the  foregoing  principle. 

Reichstag  and  providing  for  proportional  representation  in  the  election  of  80 
members  from  26  electoral  districts.  The  bill  was  adopted  by  the  Reichstag 
but  never  went  into  effect. 

^or  the  text  of  the  decree  and  some  particulars  in  respect  to  the  election,  see 
Representation,  No.  33,  March,  1919. 

2Humphreys,  op.  cit.,  pp.  188  ff. 

3For  a  discussion  of  these  criticisms,  as  well  as  of  the  projects  proposed  by  the 
Ministry  and  the  scheme  finally  adopted,  see  Brunet,  The  New  German  Con- 
stitution, pp.  103  ff.  (New  York,  1922). 


PROPORTIONAL  REPRESENTATION         99 


Every  remainder  of  more  than  7,500  votes  shall  be  given 
one  seat." 

It  is  unnecessary  to  discuss  in  detail  the  differences  con- 
tained in  the  three  proposals  of  the  Ministry.  As  a  result 
of  the  attempted  coup  d'etat  of  the  militarists  in  March, 
1920,  a  ministerial  crisis  arose  which  precipitated  the  elec- 
tion of  a  new  Reichstag  on  June  6.  The  electoral  system 
had  to  be  reformed  immediately,  if  at  all.  The  imminence 
of  the  election,  if  nothing  else,  made  it  unwise  to  undertake 
the  redistricting  that  was  involved  in  the  Ministry's  pro- 
posals. The  scheme  that  was  adopted,  therefore,  was  not 
identical  with  any  of  them. 

The  German  system  may  be  described  as  an  "  automatic ' ' 
system.  The  number  of  members  of  the  Reichstag  and 
the  number  of  members  per  district  are  fixed  neither  by 
the  constitution  nor  by  statute.  They  depend  upon  the 
number  of  votes  that  are  cast,  one  deputy  being  assigned 
for  every  60,000  votes  cast  for  a  list.  The  total  number 
of  members,  therefore,  and  the  number  from  each  district 
are  determined  after  the  fact  of  the  election.  The  several 
parties  nominate  lists  for  each  of  the  35  circumscriptions 
into  which  the  territory  of  the  Reich  is  divided.  If  the 
parties  desire  to  do  so,  they  may  associate  their  lists  in 
neighboring  circumscriptions  into  a  "union"  of  circum- 
scriptions;1 17  of  these  unions  of  circumscriptions  are 
established  by  law.  In  case  a  party  associates  its  lists  in 
one  of  these  unions,  a  first  distribution  of  seats  is  made 
upon  the  basis  of  the  circumscription  vote  in  the  ratio  of 
one  to  60,000  votes.  Thereafter  the  surplus,  or  fractional, 
votes  in  the  several  circumscriptions  of  the  union  are 
added  together  to  make  a  union  total  for  each  party ;  and 
for  every  60,000  votes  in  this  total  the  party  is  given  an 


"unions"  are  quite  different  from  the  Finnish  "compacts";  for  in 
Germany  the  party  is  not  limited  to  the  nomination  of  three  names  upon  a 
list,  but  many  nominate  a  full  set  of  candidates.  Moreover,  the  "union"  is  a 
union  of  election  districts,  whereas  the  Finnish  "compacts"  are  unions  within 
one  election  district. 


Immediate 

action 

necessary 


The 

"automatic'' 
system 
adopted 


Circum- 
scription 
"unions" 


100       NEW  CONSTITUTIONS  OF  EUROPE 

additional  seat.  There  is,  however,  no  separate  list  of 
candidates  for  such  unions;  the  seats  are  assigned  in  order 
to  the  next  candidates  on  the  circumscription  list  that 
furnishes  the  largest  number  of  surplus  votes.  Finally 
each  party  must  associate  its  circumscription  lists  with  a 
national  list  nominated  by  the  central  managers  of  the 
party.  Surplus  votes  from  the  several  unions  are  then 
totaled  for  the  entire  country,  and  seats  are  assigned  in 
the  same  ratio  to  this  national  party  list.  If  the  party 
has  not  created  circumscription  unions  of  its  lists,  the 
surplus  votes  go  direct  from  the  circumscriptions  to  make 
up  the  national  total. 

Two  qualifications  to  the  above-mentioned  rules  must 
be  noted.  If  a  party  has  united  its  circumscription  lists, 
such  unions  are  of  no  avail  unless  at  least  one-half  of  the 
quota  of  60,000  votes  has  been  polled  in  at  least  one  single 
constituency.  This  is  true  even  though  the  total  of  the 
party's  surplus  votes  for  the  several  circumscriptions  of 
the  union  is  more  than  60,000.  The  manifest  object  of 
this  provision  is  to  put  weak  and  scattered  parties  at  a 
disadvantage;  it  is  to  discourage  the  formation  of  "freak" 
parties.  The  second  qualification  of  the  general  rule  is 
that  no  party  may  elect  from  its  national  list  a  larger 
number  of  members  than  it  has  elected  from  its  circum- 
scription lists.  Here  again  the  result  is  to  prejudice  a 
party  of  inconsequence.  But  the  primary  purpose  of  the 
provision  is  to  prevent  a  party  from  being  represented  in 
major  part  by  candidates  who  are  the  choice  of  the 
national  party  machine  rather  than  by  those  who  are 
nominated  and  voted  for  locally.  The  introduction  of  the 
intermediate  unions  between  the  circumscription  lists  and 
the  national  list  was  likewise  directed  to  the  end  of  weaken- 
ing the  central  party  control.1 


1"In  trying  to  apportion  the  votes  cast  by  the  electors  for  the  National  Assem- 
bly according  to  the  mechanism  provided  by  Project  A  [one  of  the  projects  of 
the  Ministry  which  provided  for  no  unions  of  circumscription  lists],  it  was  seen 


PROPORTIONAL  REPRESENTATION       101 


In  the  election  of  June  6,  1920,  the  Communist  party 
suffered  from  both  of  these  "penalties."  They  polled 
4,381,000  votes,  which  was  seven  times  the  quota;  but  they 
secured  only  two  seats,  partly  because  their  unions  were  of 
no  avail,  and  partly  because,  having  secured  a  scat  in  only 
one  circumscription,  they  could  be  allotted  only  one  seat 
from  their  national  list.  On  the  other  hand,  the  vote  of 
the  larger  parties  was  very  accurately  reflected  in  the 
number  of  seats  they  obtained.  The  Social  Democrats 
polled  21.6  per  cent,  of  the  votes  and  secured  22.2  per  cent, 
of  the  seats.  The  German  Democratic  party  polled  8.5 
per  cent,  of  the  votes  and  secured  exactly  the  same  per- 
centage of  seats.  The  German  National  People's  party 
polled  13.9  per  cent,  of  the  votes  and  obtained  14.1  per  cent, 
of  the  seats.  The  Independent  Socialists,  with  18.8  per 
cent,  of  the  votes,  filled  19.1  per  cent,  of  the  seats.1 

It  must  be  recognized,  of  course,  that  this  German 
system  places  immense  power  over  the  personnel  and  the 
relative  chances  of  candidates  in  the  hands  of  the  party 
organizations — far  greater  power,  for  example,  than  does 
the  Belgian  system.  The  voter  can  express  no  preferences 
whatever;  he  must  take  the  candidates  in  the  order  in  which 
they  are  presented  to  him.  Moreover,  a  number  of  seats 
are  assigned  from  a  national  list  that  is  not  presented  to  the 
voters  at  all.  On  the  other  hand,  this  national  list  not 
only  assists  toward  exactitude  in  the  matter  of  propor- 
tionalities (by  compounding  surpluses  from  all  over  the 
country)  but  also  makes  it  possible  for  parties  to  assure 
the  election  of  leaders  who  might  otherwise  be  defeated  in 
particular  circumscriptions.  Like  most  expedients  cf 
politics  it  has  both  advantages  and  disadvantages. 

that  18  per  cent,  of  the  members  of  the  Reichstag,  that  is  nearly  one-fifth,  would 
be  elected  on  the  ticket  for  the  Reich,  and  it  was  estimated  that  such  a  result  in 
the  elections  of  future  Reichstags  would  be  but  little  compatible  with  the  consti- 
tutional principle  of  the  direct  vote.  It  was  decided  in  rejecting  'group-of- 
district  tickets'  to  create,  nevertheless,  groups  of  districts."  Brunei,  op.  cit., 
p.  108. 

JFor  an  analysis  of  the  vote,  see  Representation,  No.  37,  August,  1920. 


Results  in 

1920 

election 


Effect  of 
national 
lists 


Proportional 
representa- 
tion in  the 
German 
states 


The  Italian 
system 
of  1919 


Method 
of  voting 


102       NEW  CONSTITUTIONS  OF  EUROPE 

The  German  constitution  prescribes  that  the  principles 
of  proportional  representation  shall  be  applied,  not  only  in 
the  election  of  members  of  the  Reichstag,  but  also  in  the 
election  of  members  of  the  state  Landtags.1  The  states, 
therefore,  have  no  option  in  the  matter.  The  Prussian 
electoral  law  of  December  3,  1920,  establishes  a  scheme  of 
elections  that  is  practically  identical  with  that  of  the 
Reich.2  The  main  principles  of  the  system  have  been 
applied  also  to  the  election  of  the  municipal  council  of 
Greater  Berlin,  although  in  these  municipal  elections  no 
provision  is  made  for  the  grouping  of  wards  into  unions. 

By  a  law  of  June  30,  1912,  manhood  suffrage  was  in- 
troduced in  Italy,  the  number  of  electors  being  increased 
from  three  and  a  half  to  more  than  eight  and  a  half  millions. 
By  a  law  of  August  15,  1919,  proportional  representation 
was  applied  to  the  election  of  the  508  members  of  the 
Chamber  of  Deputies.8  The  Italian  scheme  provides  for 
the  election  of  not  less  than  ten  deputies  from  each 
election  district,  the  districts  being  formed  of  provinces 
or  groups  of  provinces.  The  largest  districts  are  Milan, 
Turin,  and  Naples,  returning  respectively  20,  19,  and  17 
deputies.  Lists  of  candidates  are  nominated  by  from  300 
to  500  electors;  a  list  may  contain  fewer  but  not  a  greater 
number  of  names  than  there  are  seats  to  be  filled.  The 
voter  is  given  a  ballot  which,  prepared  by  the  nominating 
party,  contains  in  a  circle  printed  on  each  side  the  party  em- 
blem but  the  names  of  no  candidates  whatever.  Instead  of 
names  there  are  a  few  dotted  lines,  in  number  equal  roughly 
to  one-fifth  of  the  members  to  be  chosen  from  the  district. 
Upon  these,  if  he  can  write,  and  if  he  happens  to  know  and 

JArt.  17.     See  also  the  Prussian  constitution,  Article  33. 
*Prcussische  Gesetzsammlung,  1920,  pp.  559  S. 

3In  November,  1918,  a  bill  of  Deputy  Camera  proposing  the  introduction 
of  the  scrutin  de  liste  in  place  of  the  single  member  constituencies  was  referred 
to  a  parliamentary  committee.  This  led  to  an  elaborate  report  on  the  whole 
subject  of  proportional  representation  and  the  presentation  of  a  bill  on  the  sub- 
ject. Camera  dei  Deputati.  No.  1065- A.  Relazione  delta  Commissione  Sulla 
proposta  di  legge  d'iniziatwa  del  deputato  Camera.  March  8,  1919. 


PROPORTIONAL  REPRESENTATION       103 


to  remember  the  nominees  of  his  party,  the  voter  may 
inscribe,  in  the  order  of  his  preference,  as  many  names  as 
there  are  lines;  and  having  done  this  on  one  side  of  the 
ballot,  he  must  repeat  the  process  on  the  other  side. 
Otherwise,  without  marking  the  ballot  at  all,  the  voter 
may  deposit  the  ballot  of  his  party  and  thereby  cast  his 
vote  for  the  list,  which  is  actually  before  him  only  in  the 
form  of  an  emblem;  he  thus  records  himself  as  being  in 
favor  of  the  order  in  which  the  names  have  been  officially 
nominated. 

More  than  half  of  the  voters  of  Italy  are  illiterate.  One 
can  readily  understand,  therefore,  the  mechanism  of  a 
ballot  that  requires  no  marking.  It  is  more  difficult  to 
understand,  however,  why  the  literate  voter  should  be 
put  to  the  maximum  of  difficulty  to  express  his  preferences 
among  the  candidates ;  he  must  not  only  commit  the  names 
to  memory  or  personal  memorandum,  but  he  must  also 
write  them  down  twice  on  the  ballot.  The  law  also  per- 
mits a  kind  of  panachage.  If  the  voter  does  not  express 
preferences  by  writing  the  names  of  candidates  of  his  own 
party,  and  if  his  party  has  not  nominated  a  full  ticket,  he 
may  write  on  the  dotted  lines  the  names  of  candidates  of 
another  party  to  a  number  equal  to  the  difference  between 
the  number  of  members  to  be  elected  and  the  number  of 
candidates  that  his  own  party  has  nominated.  In  this 
case,  therefore,  the  voter  must  remember,  not  only  names, 
but  also  the  number  of  vacant  places  upon  his  party  list. 

In  determining  the  number  of  votes  that  go  to  the 
party  list,  all  of  the  ballots  containing  the  party  emblem 
are  first  counted.  To  these  are  added  the  "additional 
votes"  resulting  from  panachages,  these  additional  votes 
being  determined  by  dividing  the  number  of  them  by  the 
number  of  seats  to  be  filled.1  Needless  to  say,  perhaps, 

'If,  for  example,  ten  members  are  to  be  chosen,  and  if  a  voter  of  party  A  writes 
the  name  of  a  candidate  of  party  B  upon  his  ballot  (party  A  not  having  nomi- 
nated a  full  ticket),  his  ballot  is  counted  as  a  whole  vote  for  party  A  and  as  a  one- 
tenth  vote  for  party  B. 


Panachage 


The  count 


104       NEW  CONSTITUTIONS  OF  EUROPE 


Assignments 
of  seats 


Results 
in  1919 
election 


the  number  of  these  additional  votes  will  probably  not 
often  be  sufficient  to  affect  net  results.  The  distribution 
of  seats  among  the  parties  is  thereupon  made  by  applying 
the  d'Hondt  rule. 

The  determination  of  the  order  of  election  is  strikingly 
different  from  that  which  prevails  under  the  Belgian 
system.  To  the  first  name  is  not  given  the  number  of 
list  votes  that  are  necessary  to  make  up  the  quota.  On 
the  contrary,  the  entire  list  vote  is  given  to  every  candi- 
date. To  this  is  added  his  preference  votes  and  his 
"additional"  votes.  It  is  these  latter,  therefore,  that 
determine  the  order  in  which  candidates  are  declared 
elected  to  the  seats  which  the  party  has  won.  Relatively 
speaking,  the  number  of  preferential  and  additional  votes 
will  probably  be  small;  at  least,  this  was  the  result  in  the 
election  of  November,  1919.  Certain  it  is  that  the  order 
of  election  will  always  be  determined  by  the  literate  ele- 
ment of  the  voters;  for  preferential  and  additional  votes 
can  be  cast  only  by  the  writing  of  names  on  both  sides  of 
the  ballot. 

It  has  been  said  of  the  election  in  1919,  which  was  the 
first  election  held  under  proportional  representation  and 
the  second  under  the  manhood  suffrage  law  of  1912: 
"The  outstanding  feature  is  the  large  increase  in  the 
Socialist  representation.  .  .  .  The  contrast  . 
between  North  and  South  has  been  mitigated  and  reduced 
to  a  correspondence  with  realities.  Of  the  deputies  who 
served  in  the  last  Chamber  only  305  presented  themselves 
for  election,  and  of  these  one- third  were  defeated.  Thus 
a  large  quantity  of  fresh  blood  has  been  infused  into  the 
Chamber.  On  the  whole,  the  Italian  Parliament  is  now 
much  more  representative  of  all  the  interests  and  phases  of 
national  life  than  it  has  ever  been  before."1 


l"  Italy — The  First  General  Election  under  P.  R. — Just  and  Inclusive 
Representation  Secured,"  Representation,  No.  35,  January,  1920,  pp.  20  ff.  In 
this  article  the  working  of  the  system  is  described,  and  the  text  of  the  law  is 
given. 


PROPORTIONAL  REPRESENTATION       105 


In  France  proposals  to  substitute  the  scrutin  de  liste  for 
the  scrutin  d' arrondissement  and  to  apply  a  plan  of 
proportional  representation  to  the  election  of  members 
of  the  Chamber  of  Deputies  have  been  agitated  for  many 
years.1  But  down  to  1919  the  Senate  was  unswerving  in 
its  opposition  to  every  such  proposal.  In  the  immediate 
aftermath  of  the  war,  however,  electoral  reform  was  taken 
up  by  the  French  Parliament,  and  on  July  12,  1919,  a  new 
electoral  law  was  enacted.2  This  law  is  a  bungling  make- 
shift, a  product  of  compromise  between  irreconcilable 
ideas,  "un  melange  incoherent"  as  the  Journal  des  De- 
bats  expressed  it.  The  feature  of  proportional  rep- 
resentation is  so  emasculated  as  to  be  scarcely  recogniz- 
able. It  can  operate  under  certain  circumstances;  but 
at  best  the  scheme  is  curiously  inapt,  inequitable,  and 
illogical. 

The  department  has  been  substituted  for  the  arrondisse- 
ment as  the  election  district;3  each  department  returns 
one  deputy  for  every  75,000  inhabitants  and  an  additional 
deputy  for  a  majority  fraction  of  that  number;  but  in  no 
case  may  a  department  return  less  than  three  deputies.4 
The  departments  vary  widely  in  this  matter;  some  depart- 
ments return  only  the  minimum,  but  the  department  of  the 
Nord  elected  23  deputies  in  1919.  Nominations  are  made 
in  lists  which  may  vary  in  names  from  one  to  the  number 
of  seats  to  be  filled.  But  the  voter  does  not  cast  his  ballot 
for  a  list  as  such,  either  by  one  mark  that  signifies  his  ad- 
herence to  the  list,  or  by  marking  one  name  on  the  list  and 
thus  implying  a  list  adherence.  On  the  contrary,  he  votes 


JSait,  Government  and  Politics  of  France,  pp.  146  ff.  (Yonkcrs,  1^20). 
text  of  the  law  see  below,  Appendix  II. 


8The  law  permits  a  division  of  populous  departments  into  districts  returning 
not  less  than  three  deputies  each. 

4For  the  election  of  1919  the  existing  apportionment  of  seats  among  depart- 
ments was  retained.  With  the  24  seats  assigned  to  the  3  departments  in  Alsace- 
Lorraine,  the  total  number  was  626. 


The  French 
system 
of  1919 


"Un 

melange 

incoherent" 


Method  of 
voting 


106       NEW  CONSTITUTIONS  OF  EUROPE 


Election 
by 

majority 
vote 


When  pro- 
portional 
representa- 
tion oper- 
ates 


for  specific  candidates;  and  he  has  as  many  votes  as  there 
are  seats  to  be  filled,  though  he  need  not  exercise  his  full 
rights  in  this  regard.  He  is  not  restricted  to  voting  for 
names  in  any  one  list  but  may  "split  the  ticket"  (pana- 
chage). 

The  number  of  voters  in  the  district  is  determined  by 
the  number  of  ballots  cast.  Any  candidate  who  receives 
a  vote  on  an  absolute  majority  of  these  ballots  is  declared 
elected.  In  other  words,  it  is  quite  possible  for  a  bare 
majority  party  to  nominate  a  full  ticket,  to  urge  its 
electors  to  vote  for  every  name  on  the  ticket,  and  thus 
to  secure  the  election  of  its  entire  delegation  by  a  simple 
majority  vote  for  each  of  its  candidates.  In  the  election 
of  November,  1919,  this  is  precisely  what  happened  in  a 
large  number  of  departments;  for  in  many  instances  the 
parties  of  the  Right  and  Center  coalesced  in  order  to 
create  a  more  or  less  fictitious  absolute  majority  against 
the  extreme  Socialists.1  This  is  not  proportional  rep- 
resentation at  all;  it  is  the  old  familiar  block  system 
in  the  multiple  member  district.  Its  result — exactly 
the  reverse  of  the  Italian  result — was  to  decrease  the 
representation  of  the  Socialists,  although  their  rela- 
tive strength  among  the  voters  showed  considerable  in- 
crease. 

The  proportional  feature  of  the  law  comes  into  play 
only  if  the  number  of  deputies  to  which  the  department  is 
entitled  are  not  elected  by  absolute  majority  votes.  In 
such  case  an  electoral  quotient  is  obtained  by  dividing  the 
number  of  ballots  by  the  number  of  seats;  and  a  list 
average  is  obtained  for  each  list  by  adding  the  number  of 
votes  polled  for  the  several  candidates  of  the  list  and 
dividing  the  total  by  the  number  of  candidates.  In  other 
words,  the  theory  is  that  the  average  number  of  votes  per 

*In  consequence,  "the  Unified  Socialists  polled  1,700,000  votes,  or  roughly 
one-quarter,  and  have  won  70  seats,  about  one-ninth.  In  1914  the  party  polled 
1,100,000  votes,  or  about  one-sixth,  and  obtained  over  one  hundred  seats." 
Representation,  No.  35,  January,  1920,  p.  35. 


PROPORTIONAL  REPRESENTATION       107 

candidate  is  approximately  the  number  of  voters  support- 
ing the  list.  A  primary  distribution  of  seats  to  the  several 
lists  is  then  made  by  determining  how  many  times  the 
electoral  quotient  is  contained  in  the  list  average,  frac- 
tions being  ignored.  A  secondary  distribution,  if  neces- 
sary, is  made  by  awarding  all  the  remaining  seats  to  the 
list  having  the  highest  average  vote.  Within  the  lists  the 
seats  are  allotted  to  the  candidates  in  the  order  of  their 
respective  number  of  votes. 

It  is  doubtless  unnecessary  to  point  out  not  only  that 
this  scheme  does  not  secure  anything  approaching  exact 
proportionality  but  also  that  the  secondary  distribution  of 
seats  greatly  favors  the  largest  party  in  the  district. 
Moreover,  the  assignment  of  seats  to  candidates  in  the 
order  of  their  votes  is  an  almost  chance  arrangement,  if 
indeed  it  does  not  lend  itself  to  the  worst  kind  of  political 
chicanery.  In  most  instances  the  candidates  on  any 
list  will  receive  nearly  equal  votes.  Unpremeditated 
differences  may  result  from  carelessness  on  the  part  of  some 
voters,  from  the  occasional  splitting  of  tickets,  especially 
by  the  voters  of  a  party  that  has  not  nominated  a  full 
ticket,  and  from  the  isolated  likes  and  dislikes  of  in- 
dividuals. But  it  is  easy  to  see  that,  where  it  can  be 
assumed  that  the  candidates  of  any  list  will  be  very  nearly 
on  a  par  as  to  votes,  a  relatively  insignificant  number  of 
voters,  whether  within  or  without  the  party,  can  by  con- 
certed action  wield  an  enormous  and  wholly  unjustified 
influence  for  or  against  a  particular  candidate.  On  the 
other  hand,  a  voter  of  this  or  that  party  can  indicate  a 
preference  for  this  or  that  candidate  of  his  party  only  at 
the  expense  of  his  vote  for  the  list  as  such;  he  must 
"scratch"  other  names  and  thus  lower  the  list  average 
in  order  to  express  a  preference. 

It  can  scarcely  be  believed  that  this  muddled  electoral 
system  will  remain  long  unaltered  in  France.  It  is 
neither  one  thing  nor  another.  In  quieter  tunes  it  is 


Faults  in 
method  of 
assigning 
seats 


A  muddled 
system 


The  Czecho- 
slovak 
system 
of  1920 


National 
lists 


certain  to  invoke  constant  hostility — and  not  without 
reason. 

In  Czechoslovakia  proportional  representation  was 
provided  for  by  a  law  of  February  29,  1920.  There  are 
23  parliamentary  constituencies  each  of  which  returns 
from  6  to  45  members  of  the  lower  house  of  the  legislature. 
The  parties  nominate  lists  of  candidates,  the  several  lists 
being  printed  upon  separate  but  uniform  ballots.  The 
voter  has  no  opportunity  but  to  vote  a  straight  party 
ticket;  it  is  the  system  of  the  "strictly  binding  lists";  and 
the  order  of  precedence  of  the  candidates  is  fixed  by  the 
nominating  party.  Even  if  one  or  all  of  the  names  are 
"scratched"  the  ballot  is  nevertheless  counted  for  the  en- 
tire fist  as  it  stood.  The  sum  of  all  the  valid  ballots  of  all 
of  the  parties  is  divided  by  the  number  of  seats  assigned 
to  the  district.  This  "electoral  number"  or  quotient  is 
then  divided  into  the  sum  of  the  ballots  of  each  party; 
and  the  parties  are  allotted  seats  in  accordance  with  the 
resulting  numbers.  Thereafter  the  surpluses  of  all  the 
parties  from  all  of  the  constituencies  are  added  together 
to  make  a  grand  total  of  surplus  votes  for  the  entire  coun- 
try.1 This  total  is  divided  by  the  number  of  seats  that 
remain  unallotted  and  to  this  quotient  one  is  added.  This 
number  is  the  "electoral  number"  or  quotient  for  the 
second  scrutin.  It  is  divided  into  the  total  surplus  votes 
of  each  of  the  parties,  and  seats  are  allotted  accordingly. 
The  candidates  to  whom  these  seats  are  given  are  taken 
from  lists  which  have  been  drawn  up  by  the  several  parties 
after  the  first  allotment  of  seats  in  the  constituencies,  which 
lists  consist  exclusively  of  names  of  candidates  who  have 
unsuccessfully  stood  for  election  in  the  constituencies. 
The  order  in  which  they  are  presented  on  the  list  is  a  mat- 
ter determined  wholly  by  the  party  managers.  If  there 


'The  surplus  votes  of  a  party  which  has  not  obtained  20,000  votes  (or  the 
electoral  number,  if  that  is  less  than  20,000)  in  at  least  one  constituency  are  not 
included  in  this  total. 


PROPORTIONAL  REPRESENTATION       109 


still  remain  seats  to  be  filled,  these  are  assigned  to  the 
parties  having  the  largest  numbers  of  unused  fractional 
votes. 

The  members  of  the  Senate  in  Czechoslovakia  are 
elected  in  precisely  the  same  manner.  There  are,  how- 
ever, only  13  senatorial  constituencies,  these  being  com- 
posed in  general  of  two  deputy  constituencies.  They 
severally  return  from  4  to  23  senators. 

This  system  of  proportional  representation  is  notable 
for  its  simplicity.1  Moreover,  it  will  probably  result 
in  obtaining  almost  exact  proportionality.  It  may  be 
chiefly  criticized  no  doubt  because  of  the  very  great  power 
that  it  vests  in  the  party  machines.  The  voter  is  not 
only  put  into  a  strait-jacket  of  party  control  of  nomina- 
tions and  of  party  regularity  in  voting,  but  he  is  also,  as  in 
Belgium  and  more  recently  in  Holland,  compelled  to  vote 
no  matter  how  much  he  may  object  to  the  alternatives 
that  are  proffered.  The  first  election  under  the  system 
was  held  in  1920 — April  18  for  the  Chamber  of  Deputies 
and  April  25  for  the  Senate.  The  principal  parties  that 
participated  were  the  National  Democrats,  Agrarian, 
Popular  (Conservative  and  Catholic),  and  the  Socialists.2 

In  Switzerland  proportional  representation  was  first 
introduced  in  the  canton  of  Ticino  in  1891,  where  it  was 
made  applicable  to  practically  all  elections  within  the 
canton.  Gradually  the  system  was  adopted  in  numer- 
ous other  cantons  for  cantonal  and  municipal  elections.3 
In  1900  and  again  in  1910  amendments  proposing  to  apply 
proportional  representation  to  elections  to  the  National 
Assembly,  the  lower  house  of  the  central  legislature, 
were  defeated  at  the  polls.  Vote  on  a  similar  amendment, 

JThe  details  of  the  system  are  briefly  described  by  V.  Joachim  in  an  introduc- 
tion to  The  Constitution  of  the  Czechoslovak  Republic  (Edition  de  la  Soci6t6 
1'Effort  de  la  Tchecoslovaquie,  Prague,  1920). 

^Representation,  No.  36,  May,  1920. 

*It  is  now  found  in  18  of  the  22  cantons. 


Encourages 

party 

control 


The  Swiss 
system 
of  1919 


"Cumul 
officiel" 


"Cumul 
prive" 


110       NEW  CONSTITUTIONS  OF  EUROPE 

proposed  by  initiative  petition  for  a  referendum  in  1914, 
was  deferred  by  reason  of  the  war  until  October  13,  1918, 
when  it  was  adopted  by  an  overwhelming  majority.  Only 
the  principle  was  written  into  the  constitution;  the  specific 
plan  was  elaborated  by  a  law  of  February  14,  1919.  The 
first  election  under  the  system  was,  by  a  transitional  con- 
stitutional amendment,  advanced  from  1920  to  October 
26,  1919. 

By  the  new  law  the  25  cantons  and  half-cantons  are 
made  the  election  units,  returning  from  1  to  16  members 
each — Vaud  16,  Geneva  8,  Neuchatel  and  Fribourg  7 
each,  Valais  6,  and  so  on.  Nomination  is  by  lists  bearing 
party  designations,  which  lists  may  contain  a  full  ticket 
of  nominees  or  a  less  number  of  names.  A  single  name 
may  be  given  two  places,  but  not  more  than  two,  upon  a 
list  (cumul  officiel)  .*  Separate  ballots  are  printed  for  each 
party  list.2 

The  voter  may  deposit  an  unaltered  ballot;  he  may 
"scratch"  (biffer)  one  or  more  names  upon  his  party 
ballot;  he  may  substitute  for  scratched  names,  or  he  may 
complete  an  incomplete  list,  by  writing  on  his  ballot  the 
names  of  candidates  of  other  parties  (panachage) ;  or 
finally,  he  may  cumulate  two  votes  (but  not  more  than 
two)  for  one  or  more  candidates  by  writing  the  names 
of  such  candidates  a  second  time  upon  the  ballot  (cumul 

irrhe  reasons  for  this  provision  have  been  explained  as  follows : 

"First.  It  was  desired  to  institute  a  corrective  for  panachage;  it  was  feareu 
that  some  individuals  would  be  given  the  word  to  'scratch'  certa;6  candidates 
of  their  party  and  thus  run  them  ashore;  it  was  feared  also  that  some  electors 
of  party  A  would  'split'  their  votes  in  favor  of  the  weaker  candidates  of  party 
B  and  that  the  latter  would  thus  be  placed  in  first  rank  on  the  B  list  to  the  det- 
riment of  the  leaders  of  the  party.  These  mano3uvres  might  result  in  the  elec- 
tion of  candidates  little  known  or  of  little  value  and  in  ousting  the  party  leaders. 

"Second.  It  was  desired  also  that  a  party — or  rather  the  group  of  electors 
who  prepare  the  list — should  be  able  to  indicate  which  of  its  candidates  it  pre- 
ferred and  desired  to  see  elected  in  any  case. 

"Third.  Finally  it  is  in  the  interest  of  small  parties  to  have  in  their  lists  as 
few  blank  lines  as  possible."  Krafft  et  Leresche,  L'Slection  et  le  renoutellement 
du  Conseil  National  d'apr&s  le  systeme  proportionnel,  p.  9  (Lausanne,  1919). 

2Blank  ballots  are  also  provided;  but  the  use  of  these  and  their  effect  upon 
the  count  need  not  be  described. 


PROPORTIONAL  REPRESENTATION       111 


prive).1  The  total  votes  of  the  several  parties,  upon  which 
the  distribution  of  seats  depends,  consist  of  two  distinct 
kinds  of  votes.  In  the  first  place,  one  vote  is  counted 
for  the  party  for  every  vote  given  to  any  candidate  of  the 
party,  whether  on  the  party  ballot  or  on  the  ballot  of 
some  other  party  by  panachage  (suffrages  nominatifs).  In 
the  second  place,  what  are  known  as  complementary  votes 
are  accredited  to  the  parties  (suffrages  complementaires) . 
These  are  the  number  of  votes  that  are  necessary  to  com- 
plete a  full  list  on  each  ballot,  whether  because  the  party 
has  not  nominated  a  full  ticket,  or  because  the  voter  has 
scratched  names  without  substituting  others,  or  because 
he  has  written  in  the  names  of  persons  who  have  not  been 
nominated  by  any  party.2  The  electoral  quotient  is 
determined  by  dividing  the  total  votes  (nominatifs  and 
complSmentaires)  of  all  the  parties  by  one  more  than  the 
number  of  seats  to  be  filled.3  The  several  parties  are  then 

1The  cumul  price"  "enlarges  the  freedom  of  the  voter";  but  it  has  been  de- 
nounced as  "favoring  the  manoauvres  of  a  small  coterie  within  a  party."  "This 
objection  loses  much  of  its  force  because  of  the  permission  granted  to  the  parties 
to  "cumulate"  upon  the  printed  list  the  candidates  whom  the  party  prefers." 
Krafft  et  Leresche,  op.  cit.,  p.  18. 

2"The  system  of  complementary  votes,  already  in  force  in  the  laws  of  Geneva 
and  Neuchatel,  was  introduced  in  order  not  to  do  injury  to  small  parties.  Sup- 
pose that  in  an  arrondissement  there  are  8  deputies  to  be  elected  and  that  there 
are  two  parties,  party  A  having  5,000  adherents  and  party  B  having  10,000. 
Party  A  nominates  4  candidates  and  party  B  8.  Party  A  obtains  5,000  X  •*  = 
20,000  nominative  votes,  and  party  B,  10,000  X  8  =  80,000.  If  party  A  could 
not  have  the  additional  benefit  of  complementary  votes,  party  B,  having  four 
times  as  many  votes,  would  have  four  times  as  many  representatives,  although 
it  counted  only  twice  as  many  electors  as  party  A.  This  injustice  could  have 
been  corrected  in  three  ways  other  than  that  adopted  by  the  law:  (1)  by  permit- 
ting unlimited  cumulation  (the  parties  would  thus  always  have  the  possibility 
of  presenting  complete  lists);  (2)  by  distributing  the  seats  according  to  the 
number  of  lists  drawn  from  the  ballot  box  (system  of  competition  between  list 
votes  [concurrence  des  suffrages  de  listes]  used  in  the  cantons  of  Soleure,  Saint- 
Gall,  Zoug,  Lucerne,  and  in  the  canton  of  Valais  for  communal  elections); 
(3)  by  dividing  the  number  of  votes  of  a  party  by  the  number  of  names  that  it 
carries  upon  its  list.  For  various  reasons,  which  we  cannot  consider  summariz- 
ing here,  these  three  systems  were  rejected."  Krafft  et  Leresche,  op.  cit.,  p.  19, 
n.  2. 

'Naturally  the  result  is  a  large  figure;  it  does  not  at  all  correspond  to  the 
quotients  or  quotas  under  systems  which  count  each  party  ballot  as  giving  only 
one  party  or  list  vote.  For  in  Switzerland  each  elector,  generally  speaking,  is 
regarded  as  having  cast  for  one  or  more  parties  a  number  of  votes  equal  to  the 
number  of  deputies  to  be  elected  from  the  canton. 


Allotment 
of  seats 
to  parties 


112       NEW  CONSTITUTIONS  OF  EUROPE 


Assignments 
of  seats 
to  candi- 
dates 


Results  of 

1919 

election 


allotted  as  many  seats  as  the  electoral  quotient  is  con- 
tained in  their  respective  totals.  If  after  this  allotment 
some  seats  remain  to  be  filled,  the  plan  is  followed  of 
redividing  the  total  of  each  party  by  one  more  than  the 
number  of  seats  that  have  already  been  allotted  to  the 
party;  and  the  remaining  seats  are  assigned  to  the  several 
parties  in  the  order  of  the  resulting  quotients  (quotients 
definitifs).1 

The  candidates  are  assigned  to  seats  in  accordance  with 
the  numbers  of  their  individual  votes.2  The  differences 
between  the  votes  of  candidates  of  the  same  party  will 
result  from  the  cumul  officiel,  from  the  cumul  prive,  from 
the  scratching  of  names  without  substitution,  and  from 
panachage.  The  differences  will  be  large  or  small  in  ac- 
cordance with  the  extent  to  which  these  several  practices 
are  followed.  It  is  at  least  possible,  however,  that  they 
may  be  determined  by  the  action  of  relatively  small 
groups  of  voters. 

It  was  said  of  the  election  in  October,  1919:  "Propor- 
tional Representation  has  made  it  possible  for  it  [the 
Socialist  group]  to  obtain  the  number  of  seats  to  which 
the  number  of  its  adherents  entitles  it.  One  may  regret 
that  the  number  of  its  adherents  is  so  high.  One  may  de- 
plore particularly  that  a  crowd  of  functionaries  who  are 
not  at  all  Bolshevist  voted  for  the  most  extreme  Left. 
But  one  ought  not  to  regret  that  a  party  obtains  the 

lThis  seems  to  be  merely  a  complicated  way  of  awarding  the  seats  to  the  par- 
ties having  the  highest  surpluses  after  the  first  distribution.  It  is  known  as 
the  Hagenbach-Bischoff  rule.  As  Mr.  Humphreys  has  shown,  its  results  are 
identical  with  results  under  the  d'Hondt  rule.  Op.  cit.,  Appendix  XI. 

zWhere  large  complementary  votes  have  been  added  to  the  nominative  votes 
the  total  vote  of  even  the  leading  candidate  will  naturally  be  much  smaller  than 
the  electoral  quotient;  for  complementary  votes  do  not  count  for  any  specific 
candidates.  A  candidate  whose  name  has  been  printed  twice  upon  the  ballot 
by  the  nominating  party  is  not  declared  elected  unless  he  has  received  a  number 
of  votes  equal  to  the  average  vote  of  his  party  candidates.  In  other  words,  the 
voters  may  by  generous  scratching  of  such  a  candidate  defeat  the  effort  of  the 
party  managers  to  guarantee  his  election;  but  to  that  extent  they  also  lower 
the  party  total.  A  candidate  whose  name  has  been  printed  only  once  upon  the 
ballot  cannot  be  assigned  a  seat  unless  he  receives  at  least  one-half  of  the  average 
vote  of  the  party  candidates. 


PROPORTIONAL  REPRESENTATION       113 

representation  to  which  it  has  a  right  according  to  its 
numerical  force.  By  securing  an  equitable  parliamentary 
representation  the  Socialists  lose  all  pretext  to  have  re- 
course to  unconstitutional  action."1 

In  the  spring  of  1922,  while  the  constituent  assembly  of 
Poland  was  still  acting  as  a  provisional  parliament,  an 
electoral  law  for  the  permanent  Parliament  was  brought 
to  its  third  reading.2  This  bill  proposed  that  the  408 
deputies  of  the  lower  chamber  (Sejm)  should  be  elected  in 
69  electoral  districts  returning  from  4  to  16  members  each 
— an  average  of  6  deputies  per  district.  Nominations  are 
made  by  district  lists;  and  after  the  determination  of  the 
electoral  quotient  and  the  allotment  of  seats  in  the  dis- 
tricts, the  surpluses  for  each  party  are  added  to  make  a 
party  total  for  the  entire  country.  Seats  are  thereafter 
allotted  to  the  several  parties  from  their  national  lists.8 


^Journal  de  Geneve,  October  28,  1919;  quoted  in  Representation,  No.  36,  May, 
1920.     The  election  results  were  as  follows: 


PABTT 

VOTES 
POLLED 

SEATS 
WON 

SEATS  IN 
EXACT 
PROPORTION 

Radical-Democrat        

213,653 

61 

53 

Socialist  (including  Grutleans)     . 
People's,  Catholic  and  Conservative 
Peasant,  Artisan  and  Middleclass 
Liberal-Democrat   
Democratic  and  Labor      

197,458 
157,186 
144,538 
28,497 
12,193 

43 
41 
29 
9 
4 

49 
39 
36 
7 
3 

Evangelicals       

6,031 

1 

1 

Union  Helvetique  

2,360 

1 

1 

Total           

761,916 

189 

189 

This  proposed  law  is  briefly  outlined  in  Weekly  News  Release  Issued  by  the 
Polish  Bureau  of  Information,  May  31,  1922  (New  York).  It  was  merely  a 
proposal  of  law  and  therefore  may  have  been  changed  in  some  particulars  before 
6nal  enactment. 

'From  the  only  summary  of  the  law  that  is  available  at  this  early  writing  it 
does  not  appear:  (1)  whether  the  voter  is  limited  to  voting  a  straight  ticket  or 
may  mark  preferences;  (2)  whether  the  d'Hondt  or  some  other  rule  is  applied; 
(3)  how  the  district  quotient  is  ascertained;  (4)  how  the  national  quotient  is 
ascertained;  (5)  whether  the  national  lists  are  prepared  before  election  or  are 
made  up  of  candidates  not  elected  in  the  districts;  (6)  nor  how  the  final  seats 
are  allotted  in  case  some  seats  remain  unfilled  after  applying  the  national  quo- 
tient. 


The  Polish 
system 
proposed 
in  1922 


114       NEW  CONSTITUTIONS  OF  EUROPE 


Proportional 
representa- 
tion in 
other  Euro- 
pean states 


It  is  provided,  however,  in  order  to  discourage  parties  of 
little  consequence,  that  no  party  may  be  assigned  a  seat 
from  its  national  list  unless  it  has  secured  one  or  more 
deputies  in  at  least  three  districts.  This  provision  is  of 
special  importance  in  Poland  because  of  the  large  number 
of  miniature  parties  that  exist.  It  will  no  doubt  operate 
to  force  some  of  them  out  of  existence  or  into  affiliation 
with  stronger  groups.1 

The  102  members  of  the  Senate  are  elected  by  a  similar 
system  of  proportional  representation  in  the  17  voyvod- 
ships  into  which  Poland  is  divided,  each  voyvodship 
returning  a  number  proportionate  to  its  population.  By 
the  constitution,  however,  the  electorate  for  the  Senate  is 
smaller  than  for  the  lower  chamber,  for  the  age  require- 
ment is  thirty  years  instead  of  twenty -one.2 

Proportional  representation  was  adopted  in  Norway  in 
1919,  and  the  first  parliament  (Storting')  was  elected  under 
it  in  October,  1921.  In  1917  the  principle  was  by  amend- 
ment of  the  constitution  applied  to  the  Holland  Chamber 
of  Deputies,3  though  not  to  the  Senate,4  and  the  principle 
was  elaborated  by  an  electoral  law  promulgated  in  Novem- 
ber, 1917.  In  Austria  the  constituent  assembly  which 
met  on  March  4,  1919,  was  elected  by  proportional  repre- 
sentation, and  the  requirement  of  the  constitution  to  this 
end  was  met  by  electoral  laws  of  July  20,  1920.5  The 
Jugoslavian  electoral  law  of  September  3,  1920,  provided 
a  list  system  of  proportional  representation  with  a  unique 


>In  the  constituent  assembly  there  were  fifteen  parties;  but  eight  of  them 
constituted  nine-tenths  of  the  membership,  and  these  eight  fell  into  four  prin- 
cipal groups. 

2Art.  12,  sec.  2;  Art.  36,  sec.  2. 
'Constitution  of  Holland,  Art.  143. 

*The  50  Senators  are  elected  from  the  11  provincial  states  in  numbers  ranging 
from  2  to  10.  One-third  of  them  are  elected  every  three  years.  Under  this 
system  it  would  have  been  impracticable  to  apply  proportional  representation 
to  the  election  of  Senators  in  most  of  the  states. 

'Staatsgesetzblatt,  1920,  Xos.  317,  351. 


PROPORTIONAL  REPRESENTATION       115 

plan  of  casting  ballots.1  The  Esthonian  and  Danzig 
systems  embody  no  unusual  features.  The  short-lived 
Russian  constituent  assembly,  which  was  elected  under 
the  Keren  sky  Government  in  November,  1917,  was  chosen 
by  a  scheme  of  proportional  representation  closely  follow- 
ing the  Belgian  plan;2  but  proportional  representation 
finds  no  place  in  the  Soviet  constitution. 

It  seems  unnecessary  to  outline  here  each  of  these 
several  systems  in  detail.  Like  the  systems  sketched 
above,  each  has  its  own  peculiarities;  but  none  of  them 
contains  any  feature  of  importance  that  is  not  found  in 
one  or  more  of  the  plans  already  described.  These  serve 
to  illustrate  practically  all  of  the  principles  involved  as 
well  as  most  of  the  striking  differences  cf  mechanism. 

The  principle  of  proportional  representation  is  mani-     The 
festly  no  longer  a  political  issue  in  most  of  the  countries     principle 

of  Europe;  it  is  an  accepted  phenomenon  of  the  new  era. 

an  issue 

Doubtless  the  several  schemes  will  be  revamped  from  time 
to  time  as  weaknesses  and  injustices  are  disclosed.  But 
the  principle  itself  is  not  likely  to  be  abandoned.  What 
its  actual  fruits  may  be  only  the  future  can  reveal.  Wise 
or  unwise,  reasonable  or  unreasonable,  it  will,  of  course, 
be  no  panacea  for  the  desperate  illness  of  Europe.  In- 
deed, for  peoples  who  are  tyros  in  the  high  art  of  self- 
government,  it  has,  despite  its  logic,  some  obvious  dis- 
advantages; for  as  Lord  Morley  has  remarked:  "But 
this  is  not  to  say  that  the  State  will  be  fortified  in  its  tasks 
by  special  electoral  devices  with  a  scent  of  algebra  and 
decimals  about  them.  These  are  not  easily  intelligible 


^'In  each  polling-booth  there  are  placed  voting-urns  on  which  are  posted  the 
names  and  possibly  some  pictorial  designation  of  the  party  lists.  Each  elector 
on  his  arrival  is  handed  by  the  returning  officer  an  electoral  token  sufficiently 
small  to  be  completely  concealed  in  a  closed  hand.  The  voter  proceeds  to  the 
urns  and  inserts  his  hand  in  each  in  turn,  dropping  the  token  in  the  urn  of  his 
own  party."  Representation,  No.  38,  December,  1920,  p.  182. 

There  were  73  electoral  districts  returning  varying  numbers  of  delegates. 
The  largest  district  returned  36.  The  total  number  was  730. 


116       NEW  CONSTITUTIONS  OF  EUROPE 

either  in  principle  or  working  to  plain  men;  they  are  more 
likely  to  irritate  than  to  appease,  to  throw  grit  instead  of 
oil  among  the  huge  rolling  shafts  and  grinding  wheels  of 
public  government."1 

Worley,  On  Politics  and  History,  pp.  197,  198  (New  York,  1914). 


CHAPTER   VI 
FUNCTIONAL  REPRESENTATION 

FUNCTIONAL,  occupational,  interest,  or  class  representa-  Functional 
tion — by  whatever  name  it  is  called — is  by  no  means  a  rePresen- 
modern  idea.  Indeed  modern  systems  of  representation  ^  old  idea 
in  Europe  were  in  most  instances  evolved  out  of  the  rep- 
resentation of  three  or  more  distinct  classes  or  estates — 
the  nobility,  the  clergy,  and  the  commons,  for  instance — 
which  estates  were,  at  least  originally,  usually  represented 
in  separate  bodies.  Survivals  of  this  kind  of  representa- 
tion were  found  in  a  number  of  the  upper  chambers  of 
Europe  before  1918  and  are  still  found  in  the  English 
House  of  Lords  and  to  a  less  degree  in  such  a  second 
chamber  as  the  Italian  Senate.1  Needless  to  say  also  the 
ownership  of  property  as  a  qualification  for  suffrage  and 
for  office-holding  has  played  an  important  role  in  the 
history  of  representation,  the  most  significant  modern  in- 
stance having  been  in  Prussia  under  the  famous  three- 
class  system  of  voting.2  Prior  to  1907  members  of  the 
Austrian  lower  house  (Abgeordnetenhaus]  were  chosen  by 
five  classes  of  voters,  at  least  two  of  which — the  cham- 
bers of  commerce  and  the  great  landowners3 — could  very 
properly  be  said  to  have  been  "functionally"  represented. 
Other  instances  might  be  cited,  but  these  are  sufficient  to 
demonstrate  the  venerable  character  of  the  general  idea  of 
functional  representation.4 

iArt.  33. 

'See  below,  p.  214. 

3The  other  classes  were  the  cities,  the  rural  communes,  and  a  general  class. 
See  below,  p.  249. 

4For  an  interesting  discussion  of  the  subject,  see  Beard,  The  Economic  Basis 
of  Politics,  pp.  46  ff.  (New  York,  1922). 

117 


118       NEW  CONSTITUTIONS  OF  EUROPE 


Theoretical 
proposals 


Benoist 


Duguit 


G.D.H.Cole 


The  Webbs 


With  the  advent  of  the  modern  industrial  era  functional 
representation  of  a  somewhat  different  kind  has  been  pro- 
posed by  many  political  writers.  For  the  most  part, 
however,  their  proposals  have  been  vaguely  theoretical. 
They  have  not  often  specified  and  defined  the  groups  to 
which  representation  should  be  given;  nor  have  they  at- 
tempted the  even  more  difficult  task  of  allotting  represen- 
tation to  the  several  groups  they  have  in  mind.  Among 
the  numerous  French  writers  upon  this  subject  M.  Benoist 
worked  out  a  unique  scheme  of  functional  representation 
combined  with  proportional  representation;1  while  M. 
Duguit  has  proposed  that  representation  be  established  in 
one  chamber  of  the  legislature  on  the  usual  basis  of  num- 
bers of  individuals  in  geographical  districts,  and  in  a 
second  chamber  on  the  basis  of  functional  groups.2  Among 
English  writers,  Mr.  G.  D.  H.  Cole  would  divide  economic 
and  political  power  among  a  number  of  functional  as- 
sociations independent  of  one  another  within  their  re- 
spective spheres,  and  at  the  top  he  would  have  a  "joint 
council  or  congress  of  the  supreme  bodies  representing 
each  of  the  main  functions  in  society."  But  this  council 
would  not  be  a  vocational  second  chamber;  it  would  be  a 
"democratic  Supreme  Court  of  Functional  Equity"  to 
decide  questions  of  dispute  between  the  state,  exercising 
power  over  political  questions,  and  the  various  vocational 
associations,  exercising  power  over  vocational  questions.3 
On  the  other  hand,  while  Sidney  and  Beatrice  Webb 
propose  a  "political  parliament"  and  a  "social  parlia- 
ment," each  supreme  within  its  sphere,  they  do  not  con- 
template that  either  one  of  these  parliaments  shall  be 


'Charles  Benoist,  La  arise  de  Vital  maderne,  de  {'organisation  du  suffrage  univer- 
sal (Paris,  1898). 

*Duguit,  Traitt  de  droii  constiiutionnel,  pp.  506-512  (Paris,  2d  ed.,  1921); 
"La  representation  syndicate  au  Parlement,"  Remie  politique  et  parlementaire, 
July,  1911. 

'Cole,  Social  Theory,  Chapter  VIII  (New  York,  1920). 


FUNCTIONAL  REPRESENTATION         119 


constituted  upon  any  principle  of  functional  representa- 
tion.1 

The  various  indefinite  schemes  of  functional  representa- 
tion that  have  been  put  forward  cannot  be  discussed 
here.  Suffice  it  to  say  that  the  general  idea  of  having 
people  represented  in  a  legislative  body  upon  the  basis  of 
their  functional,  occupational,  or  other  group  associations 
is  easy  enough  to  understand  however  difficult  it  may  be 
to  elaborate  a  satisfactory  scheme  for  such  representation. 
The  specification  of  the  groups  to  be  represented,  the 
probable  necessity  of  reorganizing  existing  groups  with 
reference  to  purposes  of  representation,  the  allotment  of 
representation  to  the  several  groups  on  the  basis  of  relative 
importance,  the  question  of  plural  voting  by  the  individual 
who  belongs  to  more  than  one  group,  the  determination 
of  whether  there  should  be  a  single  assembly  in  which 
all  "functions"  were  represented  or  many  functional  as- 
semblies coordinated  in  some  fashion — all  of  these  would 
be  problems  of  no  ready  solution.  On  the  subject  of  func- 
tional representation  it  is  less  difficult  to  philosophize  than 
to  specifize. 

Meantime,  however,  it  has  remained  for  Germany  to 
make  a  first  halting  step  in  the  direction  of  a  new  kind  of 
functional  representation.  It  is  elsewhere  pointed  out 
that  with  the  advent  of  the  revolution  in  November,  1918, 
there  arose  all  over  Germany  organizations  of  Soldiers 
and  Workers  Councils,2  and  that  a  Congress  of  these 
Councils  met  in  Berlin  in  December,  1918,  and  again  in 
April,  1919.  In  this  spontaneous  system  of  Councils  there 
was  naturally  an  enormous  amount  of  confusion  and  ir- 
regularity. Potentially  and  actually,  however,  they  were 

Sidney  and  Beatrice  Webb,  A  Constitution  for  the  Socialist  Commonwealth  of 
Great  Britain  (London,  1920). 

*See  below,  pp.  170  ff.  The  groundwork  had  been  laid  for  these  organizations 
by  the  National  Patriotic  Service  Law,  introduced  in  December,  1916,  which, 
as  a  concession  to  the  demands  of  labor,  provided  for  the  establishment  of  Com- 
mittees of  Workers  in  all  sizeable  factories.  See  Temperley,  Ed.,  A  History  of 
the  Peace  Conference  of  Paris,  Vol.  II,  p.  455  (Ix>ndon,  1920). 


Difficulties 
of  working 
out  a  plan 


Origin  of 
German 
Council 
system 


120       NEW  CONSTITUTIONS  OF  EUROPE 


Councils 
"anchored" 
in  the 
constitution 


Article  165 
a  constitu- 
tional 
landmark 


none  the  less  a  powerful  agency.  In  fact,  even  after  the 
die  had  been  cast  in  favor  of  convoking  a  constituent  as- 
sembly, and  after  the  assembly  had  come  together  in 
February,  1919,  the  Council  system  was  so  strongly  in- 
trenched that  the  Provisional  Cabinet,  resting  upon  the 
politically  elected  assembly,  was  in  no  position  to  ignore 
it.  Adopting  at  first  an  attitude  of  opposition  to  the 
Councils,  the  Government  was  in  the  end  compelled  by 
strike  and  threat  to  modify  its  stand  and  to  find  a  place 
within  the  constitutional  edifice  for  a  legally  recognized 
system  of  Councils.  Needless  to  say  this  outcome  was  far 
from  satisfying  the  demands  of  the  Independent  Socialists 
and  communists,  who  had  hoped  to  realize  a  thorough- 
going soviet  system.1 

Difficult  as  it  may  be  to  forecast  its  ultimate  effect, 
Article  165  of  the  new  German  constitution  unquestion- 
ably marks  an  important  landmark  in  modern  constitu- 
tional development.  To  be  sure  it  is  for  the  most  part 
extremely  vague  in  purport;  it  is  manifestly  a  compromise 
that  deliberately  leaves  not  only  all  details  but  also  many 
matters  of  principle  wholly  undetermined.  It  is  neverthe- 
less fundamentally  significant  both  economically  and 
politically.  In  the  realm  of  economics  it  piously  invokes 
the  principle  of  cooperation  "on  an  equal  footing"  be- 
tween employers  and  employees  "in  the  regulation  of 
salaries  and  working  conditions,  as  well  as  in  the  entire 
field  of  the  economic  development  of  the  forces  of  produc- 
tion." But  it  provides  no  specific  means  whatever  by 

JAs  one  sympathizer  with  the  radicals  remarked:  "At  the  same  time,  schemes 
are  being  continually  put  forward  by  the  less  reactionary  elements  for  drawing 
the  teeth  of  the  [Council]  movement  by  'diddling'  concessions.  Among  such 
may  be  counted  the  clauses  'anchoring'  the  Councils  in  the  Constitution.  The 
word  itself  shows  how  rapidly  the  German  politicians  are  picking  up  the  devices 
of  parliamentary  democracy.  Again  and  again,  on  the  platform  and  in  the 
Press,  the  workmen  are  assured  that  ah1  is  well  with  the  Councils  because  they 
are  'anchored'  in  the  Constitution.  What  the  workmen  want  is  not  to  see  them 
'anchored'  so  much  as  under  way;  but  it  is  creditable  diddling  is  that  catchword, 
'anchored  in  the  Constitution.' "  Young,  The  New  Germany,  p.  184  (New  York, 
1920). 


FUNCTIONAL  REPRESENTATION 


121 


which  this  millennium  of  cooperation  inter  pares  is  to  be 
effected.  "  For  the  purpose  of  looking  after  their  economic 
and  social  interests,"  it  calls  for  the  establishment  of  three 
grades  of  Workers  Councils — for  factories,  for  districts,  and 
for  the  Reich.  And  "for  the  purpose  of  performing  eco- 
nomic functions  and  for  cooperation  in  the  execution  of  the 
laws  of  socialization,"  it  calls  for  two  grades  of  Economic 
Councils — for  districts  and  for  the  Reich.  These  latter 
Councils  are  apparently  to  include  respectively  the  Dis- 
trict and  the  Reich  Workers  Councils,  as  well  as  repre- 
sentatives of  employers  and  other  groups,  and  are  to  be 
"constituted  so  that  all  important  economic  groups  shall 
be  represented  therein  proportionately  to  their  economic 
and  social  importance."  Thus  does  the  constitution  pass 
along  the  quicksandy  question  of  relativity  of  importance 
among  groups. 

Manifestly  such  nebulous  provisions  as  these  do  not 
reach  a  goal;  they  do  little  more  than  point  a  direction. 
Their  vitality  depends  wholly  upon  the  manner  in  which 
these  several  Councils  are  constituted  and  the  specific 
powers  with  which  they  are  endowed.  From  the  econo- 
mic point  of  view  it  is  difficult  to  say  which  of  these  pro- 
posed Councils  will  prove  to  be  the  most  important. 
But  from  the  political  and  constitutional  point  of  view  it 
is  certain  that  the  Economic  Council  of  the  Reich  is  of 
chief  significance.  For  this  is  the  only  one  of  the  councils 
that  is  vested  with  any  specific  power.  "Before  proposing 
drafts  of  politico-social  and  politico-economic  bills  of 
fundamental  importance,"  the  Ministry  must  submit  such 
bills  to  this  Council.  Moreover,  the  Council  may  itself 
propose  bills  and  may  submit  them  to  and  defend  them 
before  the  Reichstag  even  over  the  protest  of  the  Ministry. 
Here  indeed  is  a  power  of  some  essence.  An  economic 
parliament,  a  chamber  constituted  on  the  basis  of  func- 
tional representation,  is  vested  with  the  power  to  initiate 
and  the  right  to  be  consulted  upon  social  and  economic 


Its  terms 


Economic 
Council  of 
chief 
political 
significance 


122       NEW  CONSTITUTIONS  OF  EUROPE 


Possibilities 
of  Economic 
Council  of 
the  Reich 


Legislation 
under 
Article  165 


legislation.  It  is  not  a  third  chamber  standing  along- 
side the  Reichstag  and  the  Reichsrat;  for  it  has  no  power 
either  to  enact  or  to  veto;  it  can  only  advise  and  propose. 
Speaking  before  the  constituent  assembly  former  Un- 
der Secretary  of  State  von  Delbriick  said:  "We  are  on  the 
eve  of  a  period  in  which  the  Reichstag  and  the  Reichsrat 
will  be  considered  as  one  side  of  the  balance  and  the 
Economic  Council  as  the  other.  Behold  in  this  a  wholly 
new  political  evolution.  There  will  come  a  day  when  the 
Economic  Council  will  seek  to  become  the  heir  of  the 
Reichsrat  and  to  take  its  place."1  Such  a  development 
is  surely  within  the  range  of  possibility.  Indeed  it  is  con- 
ceivable that  by  the  quality  of  its  personnel  and  its  po- 
litical sagacity  the  Economic  Council  may  sow  in  public 
confidence  and  esteem  that  it  may  not  only  seek  to  take 
the  place  of  the  somewhat  emasculated  Reichsrat,  but 
may  also  actually  rival  or  dominate  the  Reichstag. 
Judged,  however,  in  the  light  of  the  history  of  advisory 
councils,  this  is  not  a  probable  development  unless  the 
character  and  worth  of  the  Economic  Council  should  lead 
to  a  constitutional  amendment  vesting  it  with  larger 
powers.  It  remains  to  be  seen,  then,  whether  a  body 
representing  all  important  economic  groups  in  proportion 
to  "somebody's"  view  of  their  economic  and  social  im- 
portance will  spend  its  energy  in  internal  dissensions 
arising  out  of  conflicts  of  interest  or  will  by  concert  of 
action  exert  a  powerful  constructive  influence.2 

It  is  naturally  of  interest  to  inquire  how  the  require- 
ments of  Article  165  have  been  met.  As  yet  no  attempt 
has  been  made  to  establish  the  complete  system  of  Coun- 
cils for  which  the  constitution  makes  provision.  Only 
two  steps  have  been  taken :  the  creation  of  Factory  Work- 
ers Councils  and  the  setting  up  of  a  Provisional  Economic 
Council  of  the  Reich.  Even  in  the  enactment  of  these 

'Quoted  in  Brunet,  The  New  German  Constitution,  p.  268  (New  York,  1922). 
*See  below,  pp.  131,  132. 


FUNCTIONAL  REPRESENTATION 


123 


two  laws  tremendous  difficulties  were  encountered  and 
much  opposition  was  aroused. 

Almost  immediately  after  the  promulgation  of  the  con- 
stitution a  bill  was  introduced  into  the  constituent  as- 
sembly for  the  establishment  of  the  Factory  Workers  Coun- 
cils. As  finally  enacted  on  January  18,  1920  (effective 
February  4),  this  law  was  an  elaborate  measure  set  forth 
in  106  articles.1  It  can  be  only  briefly  summarized  here.2 
The  organization  of  the  Factory  Workers  Councils,  some- 
times referred  to  simply  as  Works  Councils,8  has  been 
described  as  follows: 


The  Factory 
Workers 
Councils 
Law,  1920 


There  is  first  of  all  the  "Factory  Workers  Council,"  properly 
so-called,  which  exists  in  every  industrial  or  commercial  unit 
and  in  all  the  public  and  private  administrations  where  there 
are  at  least  twenty  workers. 

The  wage-worker  members  of  the  Factory  Workers  Council 
constitute  a  "Workers  Council"  and  the  salaried  employes  mem- 
bers make  up  an  "Employe  Council."  If  the  Factory  Workers 
Council  has  more  than  nine  members  it  elects  according  to  the 
principles  of  proportional  representation  a  "Factory  Committee" 
of  five  members.  If  the  Factory  Workers  Council  comprises 
both  representatives  of  workers  and  of  employes,  each  of  these 
two  groups  must  be  represented  in  the  Factory  Committee. 

A  "General  Factory  Workers  Council"  must  be  created  for 
enterprises  of  the  same  kind  situated  in  the  same  locality  or  in 
adjoining  localities  and  belonging  to  the  same  owners,  if  the 
Factory  Workers  Council  in  each  plant  so  decide.  This  organ- 
ization may  either  remain  in  juxtaposition  with  the  Factory 
Workers  Councils  of  the  different  plants,  or  it  may  replace  them. 
In  that  case  it  functions  as  a  common  Factory  Workers  Council. 

A  "shop  chairman"  must  be  elected  in  the  place  of  a  Factory 
Workers  Council  in  establishments  employing  less  than  twenty 
workers,  of  whom  at  least  five  must  be  electors. 

There  is  finally  a  "Factory  Assembly"  composed  of  all  the 
regular  employes  of  the  factory.  It  is  convened  by  the  presi- 


iDeutsche  Nationalveraammlung,  1920,  No.  2028. 

*See  "German  Works  Council  Law,"  Monthly  Labor  Review,  May,  1920, 
pp.  172  ff.;  "Problems  of  Labor  and  Industry  in  Germany,"  Special  Report 
Number  15,  National  Industrial  Conference  Board,  September,  1920,  pp.  30  ff. 

JThe  constitution  uses  Betriebsarbeiterrat:  the  law  uses  Betriebsrat,  which  is 
divided  into  an  Arbeiterrat  and  an  AngesteUienrai. 


Organiza- 
tion of 
Councils 


124       NEW  CONSTITUTIONS  OF  EUROPE 


Powers 

mostly 
advisory 


dent  of  the  Factory  Council.     He  must  convoke  it  if  the  em- 
ployer or  at  least  one-quarter  of  the  workers  demand  it.1 

In  spite  of  this  elaborate  organization  the  powers  of 
the  Factory  Workers  Councils  are  almost  wholly  advisory.2 
They  may  support  with  advice,  cooperate,  invoke  concilia- 
tion, carry  out  awards  that  have  been  accepted,  agree  with 
the  employer,  promote  harmony,  receive  complaints, 
support  the  factory  inspectors;  but  they  are  not  vested 
with  any  legal  power  to  render  and  enforce  decisions  or 
otherwise  to  participate  in  any  effective  way  in  the  actual 
management  of  the  business  against  the  will  of  the  em- 
ployer. It  is  true  that  in  enterprises  that  are  managed 
by  a  board  of  directors  a  Factory  Workers  Council  may 
designate  one  or  two  of  its  members  to  sit  on  this  board; 

Brunei,  op.  cit.,  pp.  250,  251. 


law  assigns  to  them  the  following  duties: 

"1.  In  establishments  with  economic  (commercial  or  industrial)  aims,  to  sup- 
port the  management  with  advice  in  order  to  assist  it  to  bring  the  establishment 
to  the  highest  possible  state  of  efficiency. 

"2.  To  cooperate  in  the  introduction  of  new  labor  methods. 

"3.  To  safeguard  the  establishment  from  violent  disturbances,  and,  without 
prejudice  to  the  rights  of  economic  organizations  of  manual  workers  and  salaried 
employees,  to  invoke  the  conciliation  committee  or  some  other  conciliation  or 
arbitration  board  agreed  upon  in  case  of  disputes  between  the  works  council, 
the  workers,  or  a  part  of  the  workers,  and  the  employer  which  cannot  be  settled 
by  agreement. 

"4.  To  see  to  it  that  awards  made  by  a  conciliation  or  arbitration  board  in 
matters  concerning  the  entire  establishment  and  accepted  by  the  interested 
parties  be  carried  out. 

"5.  To  6x,  in  agreement  with  the  employer,  general  shop  regulations  and  any 
modifications  of  the  same  within  the  terms  of  collective  agreements  then  in  force. 

"  6.  To  promote  harmony  among  the  workers  and  between  them  and  the  em- 
ployer and  to  safeguard  the  workers'  right  of  combination. 

"7.  To  receive  complaints  of  the  workers'  and  salaried  employees'  council 
and  to  dispose  of  them  in  agreement  with  the  employer. 

"8.  To  take  measures  to  combat  danger  to  health  and  accidents  in  the  estab- 
lishment; support  the  factory  inspectors  and  other  officials  in  the  task  of  com- 
bating these  dangers  by  information,  advice,  and  calling  them  in  when  necessary, 
and  by  supervising  the  carrying  out  of  the  orders  of  the  industrial  authorities 
and  of  the  provisions  for  the  prevention  of  accidents. 

"9.  To  take  part  in  the  administration  of  pension  funds,  company-owned 
workmen's  dwellings,  and  other  welfare  institutions  of  the  establishment." 
"German  Works  Council  Law,"  Monthly  Labor  Review,  May,  1920,  p.  178. 

The  powers  of  the  "Workers  Council"  and  of  the  "Employ6  Council"  into 
which  the  Factory  Workers  Council  is  divided,  are  as  applied  to  their  re- 
spective groups  practically  identical  with  the  powers  of  the  Factory  Workers 
Council  with  respect  to  both  groups. 


FUNCTIONAL  REPRESENTATION 


125 


but  these  members  constitute  a  negligible  minority.  It 
is  true  also  that  the  Council  may  demand  the  wage  sheet 
and  a  quarterly  report  on  the  condition  and  output  of  the 
plant,  and  that  in  sizeable  establishments  it  may  request 
an  annual  balance  sheet  and  the  profit  and  loss  account; 
but  it  is  given  no  general  access  to  the  books  of  the  enter- 
prise, and  even  the  meager  information  that  it  may  de- 
mand must  be  held  in  strictest  confidence.  In  the  matter 
of  hiring  and  firing  the  Councils  are  vested  with  the  power 
to  entertain  appeals  only  in  certain  limited  cases  of  dis- 
missal, to  "negotiate"  with  the  employer,  and  in  the  event 
of  disagreement  to  pass  the  matter  on  to  an  arbitration 
board. 

It  must  not  be  thought  that  the  system  of  Factory 
Workers  Councils  was  proposed  or  accepted  as  a  substitute 
for  the  more  powerful  organizations  of  the  trade-unions. 
At  the  outset,  in  fact,  the  trade-unions  had  bitterly  opposed 
the  establishment  of  a  council  system;  for  in  November 
and  December,  1918,  they  had  concluded  with  the  big 
associations  of  employers  highly  satisfactory  agreements 
for  the  establishment  of  "labor  partnerships"  (Arbeits- 
gemeinschafteri)  composed  of  equal  numbers  of  workers 
and  employers.1  In  the  end,  however,  they  were  compelled 
by  the  radical  elements  to  accept  the  proposal  for  Councils ; 
and  they  agreed  to  assist  the  Factory  Workers  Councils 
on  condition  that  the  Councils  operated  in  accord  with 
the  unions.  The  law  creating  the  Councils  expressly 
provides  that  "the  right  of  the  economic  organizations 
of  workers  and  of  employees  to  represent  the  interests 
of  their  members  is  in  no  way  prejudiced  by  the  provisions 
of  this  law."  By  a  number  of  other  provisions,  moreover, 
it  is  fairly  implied  that  the  Councils  are  to  cooperate  with 
and  be  in  supplement  of  the  trade-unions.  Although  the 
law  does  not  mark  a  sharp  line  of  functional  distinction 
between  the  two,  it  was  almost  certain  that  the  success 

'Brunei,  op.  cit.,  pp.  238-244. 


Councils 
not  a 
substitute 
for  trade- 
unions 


126       NEW  CONSTITUTIONS  OF  EUROPE 

Similiarity  of  the  Factory  Workers  Councils  would  depend  in  large 
measure  upon  the  extent  to  which  they  cooperated  with 
and  depended  upon  the  older,  larger,  more  resourceful, 
and  more  powerful  trade-unions.  An  isolated  Factory 
Council  could  not  possibly  develop  the  strength  of  a  na- 
tional organization.  Moreover,  the  growth  of  the  trade- 
unions  in  Germany  since  the  close  of  the  World  War  has 
been  almost  incredible.1  On  the  other  hand,  the  radicals 
maintain  that  there  is  an  essential  difference  of  purpose 
between  the  trade-union  and  the  Council;  the  former's 
mission  is  to  promote  the  interests  of  labor  under  a  capital- 
istic regime;  the  mission  of  the  latter  is  to  prepare  the 
working  class  to  take  over  the  whole  function  of  produc- 
tion. It  is  simply  a  fact,  however,  that  there  is  not  the 
most  remote  hint  of  this  larger  mission  in  the  law  itself. 

Elections  of  members  of  the  Factory  Workers  Councils 
took  place  in  April  and  May,  1920.  Basing  its  opinions 
upon  the  reports  of  the  German  factory  inspection  service, 
the  United  States  Bureau  of  Labor  Statistics,  making  due 
allowance  for  the  brief  period  of  ten  months'  operation  of 
the  law,  reaches  the  following  conclusions  in  respect  to  its 
effectiveness: 

Results  of  1.  The  works  council  law     .     .     .     was  a  compromise  prod- 

operatioa  uct  of  the  coalition  parties  of  that  time.     The  principle  of  the 

of  Councils  right  of  co-management  was  almost  entirely  surrendered  by 
this  compromise.  The  compromise  character  of  the  law  had 
the  particular  result  that,  from  a  technical  legal  standpoint, 
it  was  interpreted  inaccurately  and  ambiguously.  If  one 
studies  the  commentaries  on  the  law  which  have  been  written 
by  jurists  and  by  representatives  of  the  employers  and  of  the 
workers  they  are  found  to  lack  uniformity.  The  elastic  inter- 
pretations of  the  law  since  it  has  been  put  to  practical  use  be- 
tray this  lack  of  uniformity  even  more  than  the  commentaries. 
It  is,  therefore,  but  natural  that  during  the  first  ten  months  of 

l"  Viewed  in  the  large,  it  may  be  said  that  the  number  of  employees  in  Ger- 
many, whether  manual  or  clerical  workers,  who  are  not  organized  is  small. 
Only  here  and  there  one  finds  a  workman  who  is  not  a  member  of  a  labor  organi- 
zation." "Problems  of  Labor  and  Industry  in  Germany,"  Special  Report  Num- 
ber 15,  National  Industrial  Conference  Board,  September,  1920,  p.  8. 


FUNCTIONAL  REPRESENTATION         127 

the  operation  of  the  works  councils  the  workers  in  many  in- 
stances attempted  to  exceed  the  rights  granted  them  by  the  law, 
while,  on  the  other  hand,  many  employers  endeavored  to  with- 
hold from  the  workers  even  those  rights  to  which  the  latter  were 
entitled.  Thus  these  ten  months  have  been  spent  to  a  large  ex- 
tent in  conflicts  over  the  interpretation  of  the  law  and  in  efforts 
of  the  political  parties  to  secure  control  of  the  works  councils. 

2.  The  comparatively  large  number  of  disputes  that  have 
arisen  out  of  the  operation  of  the  works  council  law  have  nearly 
always  been  settled  amicably  through  the  intervention  of  the 
factory  inspectors.     .     .     . 

3.  The  most  outstanding  fact  revealed  by  experiences  from 
the  first  year's  operation  of  the  councils  is  that  in  disputes  be- 
tween employers  and  councils  both  sides,  as  a  rule,  do  not  act 
on  their  own  initiative  but  are  generally  guided  by  their  respec- 
tive organizations.     This  accounts  for  the  fact  that  many  dis- 
putes were  initiated  as  mere  test  cases  and  were  fought  out 
through  both  tribunals  of  appeal  permitted  under  the  law. 

4.  The  works  councils,  and  still  more  the  workers  councils 
[i.  e.,  the  councils  of  manual  workers  as  distinguished  from  the 
councils  of  salaried  or  clerical  employees],  are  entirely  controlled 
by  the  trade-unions.     In  view  of  the  phenomenal  development 
of  the  trade-union  movement  in  Germany  since  the  end  of  the 
war — the  unorganized  workers  now  form  only  a  small  minority 
in  nearly  all  establishments — this  seems  but  the  natural  out- 
come.    It  often  leads,  however,  to  attempts  on  the  part  of  the 
works  councils  to  discriminate  against  the  unorganized  workers 
and  to  force  them  into  joining  an  organization.     Friction  has 
often  arisen  among  council  members  themselves  when  they  be- 
longed to  rival  labor  organizations. 

5.  The   councils   so   far  elected   are   mostly   composed   of 
younger  workers   with   pronounced   radical   tendencies.     The 
older  and  more  conservative  workers  either  are  not  being  consid- 
ered in  the  nominations  or  refuse  election.     The  office  of  coun- 
cil member  seems  to  be  no  sinecure  and  is  little  sought  after. 
The  duty  of  mediation  puts  the  council  members,  and  especially 
the  chairman  of  the  council,  in  a  rather  difficult  position.     If 
the  council  in  its  dealings  with  the  employer  upholds  the  in- 
terests of  the  workers  only,  there  is  continuous  friction  with 
the  employer,  and  if  it  observes  a  more  moderate  attitude,  it  is 
accused  by  the  working  force  of  subserviency  to  the  employer's 
interests.     This  has  led  many  councils  to  resign  in  a  body. 

6.  So  far  the  councils  have  failed  to  take  seriously  one  of  their 
principal  duties,  that  of  "supporting  the  management  with 
advice  in  order  to  assist  in  bringing  the  establishment  to  the 
highest  possible  state  of  efficiency.     .     .     ." 


Control  by 
trade- 
unions 


128       NEW  CONSTITUTIONS  OF  EUROPE 

7.  All  reports  agree  in  one  point,  namely,  that  the  smooth 
operation  of  works  councils  depends  largely  on  their  make-up. 
.     .     .     A  great  deal  depends  also  upon  the  intellectual  and 
technical  fitness  of  the  council  members  for  their  office.     The 
trade-unions  seem  to  be  fully  aware  of  this  fact  and  have  estab- 
lished training  courses  for  council  members  in  all  industrial 
centers.     .     .     . 

8.  Works  councils  have  operated  most  satisfactorily  in  estab- 
lishments in  which,  from  the  beginning,  both  sides  showed  good 
will  and  an  honest  desire  for  successful  cooperation.     .     .     . 

9.  There  seems  to  be  little  need  for  works  councils  in  small 
establishments.     .     .•.*!  = 

10.  The  majority  of  employers  are  adapting  themselves  to 
the  new  institution,  and  facilitate  the  operation  of  the  councils 
by  providing  them  with  office  rooms,  clerical  help,  telephones, 
etc.,  and  by  exempting  a  reasonable  number  of  the  council  mem- 
bers from  productive  work.     .     .     . 

11.  Women  workers  show  scant  interest  in  works  coun- 
cils.    .     .     . 

12.  All  works  councils  are  supporting  the  factory  inspection 
service  to  the  best  of  their  ability  in  combating  health  and  ac- 
cident hazards.1 


Law  of 
1920  for 
Provisional 
Economic 
Council 


At  no  time  apparently  has  the  Government  been  pre- 
pared to  bring  forward  a  comprehensive  proposal  for  the 
entire  system  of  Councils  mentioned  in  the  constitution. 
Having  provided  for  the  lowest  order  of  Councils — the 
Factory  Workers,  or  Works,  Councils — it  turned  its  at- 
tention to  the  highest  Council,  the  Economic  Council  of 
the  Reich.  It  was  difficult  if  not  impossible,  however,  to 
create  this  Council  in  constitutional  form  without  also 
creating  at  least  the  Workers  Council  of  the  Reich;  for 
Article  165  evidently  contemplates  that  members  of  the 
central  Workers  Council  should  unite  with  representatives 
of  other  economic  interests  to  form  the  central  Economic 
Council.  It  was  therefore  decided  to  establish  a  Provi- 
sional Economic  Council  of  the  Reich.  A  law  to  this  end 
was  enacted  in  Mav,  1920,  and  the  Provisional  Economic 


l"  Factory  Inspectors'  Reports  on  Operation  of  German  Works  Councils," 
Monthly  IJibor  Review,  February,  1922,  pp.  10-12. 


FUNCTIONAL  REPRESENTATION 


129 


Council  met  for  the  first  time  on  the  thirtieth  of  June 
following.1 

As  might  have  been  expected  extraordinary  difficulty 
was  encountered  in  allotting  representation  to  various  in- 
terests "proportionately  to  their  economic  and  social 
importance."  It  was  finally  determined  that  of  the  326 
members,  representation  should  be  distributed  as  follows: 


68  representatives 

68  representatives 

44  representatives 

36  representatives 

(handicrafts) 

34  representatives 

transport  and 

6  representatives 

30  representatives 

associations, 

16  representatives 

24  representatives 


of  agriculture  and  forestry 
of  general  industry 
of  commerce,  banking,  and  insurance 
of   small   business   and  small  industries 

of  transport  services  (water  and  railway 
postal  service) 

of  market  industries  and  fisheries 
of  consumers   (municipalities,  consumers 
and  organizations  of  women) 
of  civil  servants  and  the  professions 
named  by  the  government 


Most  of  these  divisions  comprise  enterprises  or  services 
in  which  there  are  employers  and  employees;  in  such 
divisions  it  is  expressly  provided  that  there  shall  be  parity 
of  representation  between  the  two.  So  far  as  the  election 
or  appointment  of  labor  representation  is  concerned,  use 
was  of  necessity  made  of  the  trade-union  organizations. 
Greater  difficulty  was  encountered  in  determining  the 
mode  of  choosing  the  representatives  of  employers  and 
property  owners.  A  complicated  compromise  was  finally 
reached  by  which  some  of  these  representatives  were 
chosen  with  reference  to  the  national  associations  of  em- 
ployers organized  on  the  basis  of  specific  industries,  while 
others  were  chosen  with  reference  to  the  local  or  regional 
organization  of  employers  in  chambers  of  commerce  and 
similar  associations.  For  the  purpose  of  actually  naming 

'The  original  project  of  the  law  is  outlined  in  "Problems  of  Labor  and  Indus- 
try in  Germany,"  Special  Report  Number  15,  National  Industrial  Conference 
Board,  September,  1920,  pp.  38  ff.  As  finally  enacted  the  law  is  best  described 
by  Brunei,  op.  cit.,  pp.  263  ff. 


Apportion- 
ment of 
represen- 
tation 


Parity  of 
employers 
and 
employees 


Representa- 
tives of 
general 
industry  as 
illustration 


Functions 

of 

Provisional 

Economic 

Council 


130       NEW  CONSTITUTIONS  OF  EUROPE 

the  delegates,  power  was  in  many  instances  vested  in 
Arbeitsgemeinschaften,  or  "labor  partnerships,"  consisting 
of  equal  numbers  of  representatives  of  trade-unions  and 
of  associations  of  employers.  For  example,  of  the  68  rep- 
resentatives of  general  industry,  48  represent  national 
trade  groups.  Of  these  48,  21  employers  and  21  employees 
were  designated  with  due  regard  for  specific  industries, 
by  the  central  or  national  Arbeitsgemeinschaft  of  all  the 
employers  and  employees  of  Germany;  2  employers  and 
2  employees  were  named  by  the  Coal  Council  of  the  Reich 
(Reichskohlenrat),  consisting  of  both  employers  and  em- 
ployees; and  1  employer  and  1  employee  were  named  by 
the  similarly  constituted  Potash  Council.  Of  these  same 
68  representatives  of  general  industry,  the  remaining  20 
represent  regional  groups;  10  of  these  are  employers  chosen 
by  the  national  Chamber  of  Commerce  from  among  local 
chambers  of  commerce  in  regions  not  otherwise  adequately 
represented,  and  10  are  employees  chosen  by  the  trade- 
union  members  of  the  central  Arbeitsgemeinschaft  from 
regions  similarly  unrepresented. 

Whether  the  basis  of  representation  in  the  permanent 
Economic  Council  of  Reich,  which  is  yet  to  be  established, 
will  be  identical  with  or  similar  to  the  basis  provided  for 
this  Provisional  Council  has  not  been  determined.  If  a 
similar  basis  is  adopted,  it  would  seem  that,  according 
to  the  literal  terms  of  Article  165,  the  Workers  Council 
of  the  Reich  would  of  necessity  consist  of  the  labor  mem- 
bers of  the  Economic  Council.  On  the  other  hand,  it  would 
in  many  ways  seem  appropriate  that  the  three  grades  of 
Workers  Councils  (Factory,  District,  and  Reich)  should 
be  constituted  in  some  hierarchical  relationship  to  one 
another. 

This  Provisional  Economic  Council  is  regarded  primar- 
ily as  a  kind  of  "constituent  assembly"  convoked  for  the 
purpose  of  proposing  a  "constitution"  for  the  several 
councils  (except  the  Factory  W7orkers  Councils  already 


FUNCTIONAL  REPRESENTATION         131 

established)  required  by  the  constitution.  This  appears 
to  be  its  main  task.  Meantime,  however,  it  is  to  a  con- 
siderable extent  performing  the  functions  of  a  permanent 
Economic  Council.  Certain  bills  of  a  socio-economic  or 
politico-economic  character  have  been  submitted  to  it  by 
the  Ministry.1  For  example,  a  bill  for  the  organization  of 
employment  information  bureaus  and  a  bill  for  the  estab- 
lishment of  a  system  of  arbitration  for  the  settlement  of 
industrial  disputes  were  vigorously  debated  both  in  the 
committees  and  the  plenary  sessions  of  the  Provisional 
Economic  Council.  In  December,  1921,  those  bills  were 
adopted  in  such  form  that  a  majority  of  the  trade-union 
delegates  voted  against  them.  It  is  interesting  to  note 
that  there  appears  to  be  more  solidarity  among  the  em- 
ployer group  than  among  the  labor  group;  the  latter  tends 
more  frequently  to  split  into  smaller  groups  representing 
various  shades  of  radical  opinion.  Even  so  the  line  be- 
tween employer  representative  and  employee  representa- 
tive is  fairly  drawn,  with  the  result  that  the  balance  of 
power  lies  with  the  24  appointees  of  the  government,  who 
are  likely  to  reflect  the  views  of  the  government.  It  was 
this  fact  no  doubt  that  led  the  organ  of  the  General 

'The  Korrespondenzblatt  des  Allgemeinen  Deutschen  Gewerkschaftsbundea  of 
April  8,  15,  and  22,  1922,  contains  long  articles  on  the  results  of  bills  considered 
by  the  Provisional  Economic  Council  of  the  Reich.  One  of  the  first  bills  con- 
sidered by  its  socio-political  committee  was  concerned  with  the  hours  of  labor  for 
industrial  workers.  This  bill  was  referred  to  a  sub-committee  (Arbeiiaonisschuss) 
which  attempted  to  consider  the  whole  question  of  labor  conditions  in  industry. 
The  employer  members  thereupon  absented  themselves  from  the  meetings  of 
the  sub-committee,  and  the  matter  was  referred  back  to  the  socio-political  com- 
mittee, which  passed  a  resolution  restricting  the  scope  of  the  sub-committee's 
inquiry.  Thereupon  the  labor  members  absented  themselves,  and  the  matter 
again  went  to  the  socio-political  committee,  which  finally  referred  it  to  a  com- 
mittee of  14  experts.  Other  matters  considered  by  the  socio-political  committee 
have  been  the  status  of  house-servants  and  social  insurance.  On  January  19 
and  20,  1922,  the  finance  committee  considered  tariff  questions;  and  on  Febru- 
ary 4-7,  the  Council  itself  discussed  export  duties.  On  March  15-24,  it  consid- 
ered the  matter  of  duties  on  ink  and  paper  with  reference  to  the  needs  of  the 
German  press.  On  March  8,  the  politico-economic  committee  had  under  con- 
sideration the  agenda  of  the  Genoa  Conference.  On  March  22,  the  reparation 
committee  considered  the  problem  arising  out  of  the  Wiesbaden  agreement  on 
reparations.  This  brief  review  serves  to  illustrate  the  kind  of  questions  that 
are  being  brought  to  the  attention  of  the  Provisional  Economic  Council  of  the 
Reich. 


Balance  of 
power  is  with 
government 
appointees 


Little 

progress 

with 

District 

Economic 

Councils 


132       NEW  CONSTITUTIONS  OF  EUROPE 

Federation  of  German  Trade-Unions  to  declare  after  the 
vote  on  the  above-mentioned  bills:  "The  Economic  Coun- 
cil of  the  Reich  is  not  a  favorable  ground  for  the  free  trade- 
unions  to  realize  their  fundamental  principles.  The  em- 
ployers have  more  opportunity  for  doing  so,  but  they  also 
are  kept  in  check  by  their  class  politics.  Thus  it  remains 
for  the  Government  to  make  the  final  decision.  The 
Economic  Parliament  has  of  its  own  accord  ruled  itself  out"1 
Ever  since  the  opening  of  the  Provisional  Economic 
Council  its  committee  on  constitution  has  been  endeavor- 
ing to  outline  a  plan  of  organization  for  the  District 
Economic  Councils.  Great  difficulties  have  been  en- 
countered. The  trade -unions  demand  the  abolition  of 
chambers  of  commerce  and  other  existing  associations  of 
employers,  and  the  election  by  some  plan  of  proportional 
representation  of  District  Workers  Councils  and  of  District 
Employers  Councils  which  together  and  in  equal  numbers 
would  form  the  District  Economic  Councils.  The  em- 
ployers as  well  as  the  Government  are  opposed  to  the 
abolition  of  the  existing  employers  organizations.  Down 
to  January,  1922,  the  committee  on  constitution  had  not 
reached  any  decision  on  this  matter;  nor  had  they  settled 
the  question  of  the  powers  of  District  Councils  or  the 
question  whether  they  should  be  organized  according  to 
industries,  or  existing  political  divisions,  or  newly  created 
geographical  districts,  or  some  other  criterion.2 


lKorrespondenzblatt  des  AUgemeincn  Deutschen  Gewerkschaflsbundes,  Decem- 
ber 17,  1921. 

2In  the  Korrespondenzblatt  des  Attgemeinen  Deutschen  Gewerkscliaftsbundes 
of  February  4,  1922,  there  is  reprinted  from  Afa,  the  organ  of  the  Allgemeine 
Freie  Angestelltenbund,  an  article  entitled:  "What  is  becoming  of  the  District 
Economic  Councils?"  The  author,  Herr  Aufhauser,  is  a  trade-union  member 
of  the  committee  on  constitution  of  the  Provisional  Economic  Council  of  the 
Reich.  He  contends  that  the  continued  existence  of  chambers  of  commerce 
and  employers'  associations  without  any  organic  connection  with  the  District 
Economic  Councils  would  reduce  the  latter  to  impotence.  On  the  other  hand, 
unless  some  substitute  based  on  economic  conditions  and  not  on  constitutional 
paragraphs  can  be  found,  these  existing  units  cannot  be  abolished.  The  im- 
portant task  is  to  create  local  economic  councils,  but  the  big  capitalists  are 
absolutely  opposed  to  this.  They  will  not  admit  the  workers  into  their  cham- 


FUNCTIONAL  REPRESENTATION         133 

Although  the  matter  is  wholly  outside  the  sphere  of  the 
constitution,  no  discussion  of  the  functional  representation 
of  labor  in  Germany  would  be  complete  without  reference 
to  the  important  events  that  followed  the  short-lived 
military  coup  de  main  of  March,  1920,  which  was  effected 
under  the  leadership  of  von  Kapp  and  von  Llittwitz. 
Taken  by  surprise  and  deprived  of  the  support  of  the 
troops  upon  whom  they  had  counted,  the  Government 
fled  from  Berlin  and,  together  with  members  of  the  politi- 
cal parties  which  had  supported  it,  issued  a  proclamation 
calling  for  a  general  strike.  The  strike  immediately  broke 
the  back  of  the  monarchist  insurrection;  but  the  radicals 
were  quick  to  take  advantage  of  the  chaotic  situation  that 
ensued.  Before  they  would  call  off  the  strike  or  permit 
a  restitution  of  the  old  Government,  the  trade-unions 
forced  the  Government  to  sign  an  agreement  recognizing: 
(1)  their  right  to  dictate  future  Cabinet  appointments  both 
in  the  Reich  and  in  Prussia;  (2)  their  right  to  have  a  de- 
cisive voice  in  the  formulation  of  economic  and  socio- 
political legislation;  and  (3)  their  right  to  approve  a  re- 
form of  the  administration  "on  a  democratic  basis."1 


bers  or  give  them  a  direct  share  in  the  management  of  industry.  In  this 
connection  it  should  be  remembered  what  a  powerful  influence  the  chambers 
of  commerce  exert  upon  the  Reichsrat,  which  is  continually  curbing  both  the 
Reichstag  and  the  Economic  Council  of  the  Reich.  "It  is  not  too  much  to  say 
that  the  value  of  all  the  council  organizations  stands  or  falls  with  this:  whether 
it  will  be  possible  to  reorganize  the  employers'  chambers  into  true  economic 
chambers  in  which  the  workers  will  have  equal  rights." 

!The  terms  of  the  agreement  between  the  Government  and  the  trade-unions 
were  as  follows: 

"1.  That  in  the  approaching  creation  of  new  Governments  in  the  nation  and 
in  Prussia,  the  question  of  personnel  be  solved  by  the  several  parties  after  agree- 
ment with  those  trade-union  organizations  of  manual  workers,  clerical  employ- 
ees, and  officials  who  had  taken  part  in  the  general  strike;  and  that  these  organ- 
izations, with  due  regard  for  the  rights  of  the  representatives  of  the  people,  be 
accorded  a  decisive  voice  in  the  formulation  of  economic  and  socio-political 
legislation. 

"2.  Immediate  disarmament  and  punishment  of  all  those  who  had  partici- 
pated in  the  overthrow  of  the  Constitutional  Government  and  also  of  all  those 
officeholders  who  had  placed  themselves  at  the  disposal  of  the  unlawful  Govern- 
ment. 

"3.  Thorough  house-cleaning  of  all  public  administrative  offices  and  of  the 
managements  in  industrial  establishments  of  all  persons  who  had  taken  part  in 


Agreement 
between 
Government 
and  trade- 
unions 
in  1920 


134       NEW  CONSTITUTIONS  OF  EUROPE 

Significance  The  recognition  of  such  far-reaching  claims  was,  of 
of  agree-  course,  nothing  short  of  revolutionary.  Only  time  can 
tell  whether  this  documentary  contract  between  the  trade- 
unions  and  the  Government  of  the  day  must  be  regarded 
as  the  ephemeral  product  of  a  turbulent  period,  binding 
upon  no  Government  of  the  future  because  it  is  no  part  of 
the  fundamental  law  of  Germany;  or  whether  it  will  take 
its  place  as  among  the  world's  famous  charters  of  rights — a 
charter  indeed  that  might  prove  to  be  far  more  important 


the  counter-revolution,  particularly  of  those  who  had  held  leading  positions 
and  the  substitution  for  them  of  trustworthy  leaders;  reinstatement  of  all  rep- 
resentatives of  organizations  who  have  been  disciplined  for  industrial  or  political 
reasons. 

"4.  The  promptest  carrying  out  of  administrative  reform  on  a  democratic 
basis  with  the  approval  of  the  trade-union  organizations  of  manual  workers, 
clerical  employees,  and  officials. 

"5.  Immediate  extension  of  existing  social  legislation  and  the  enactment  of 
new  laws  which  would  guarantee  complete  economic  and  social  equality  to 
manual  workers,  clerical  employees,  and  officials;  immediate  enactment  of  a 
liberal  civil  service  law. 

"6.  Immediate  beginning  of  the  socialization  of  those  branches  of  economic 
activity  which  are  ripe  for  it  on  a  basis  of  the  recommendations  of  the  Commis- 
sion on  Socialization;  convening  of  the  Commission  on  Socialization;  Govern- 
ment ownership  of  the  Coal  Syndicate  and  the  Potash  Syndicate. 

"7.  Effective  control  and,  if  necessary,  seizure  of  available  articles  of  food 
and  the  severest  repression  of  extortionate  charges  and  profiteering  in  cities 
and  in  rural  regions;  assurance  of  the  fulfilment  of  promises  of  delivery  through 
the  establishment  of  delivery  organizations  and  penalty  of  severe  punishment 
for  malicious  violation  of  these  promises. 

"8.  Disbandment  of  all  associations  of  counter-revolutionary  troops  that 
were  unfaithful  to  the  Constitution  and  the  substitution  for  them  of  military 
organizations  formed  from  among  that  body  of  trustworthy  Republican  popula- 
tion, particularly  from  organized  manual  workers,  clerical  employees,  and  of- 
ficials without  discrimination  against  any  class.  In  this  reorganization,  the 
well-earned  legal  claims  of  those  troops  and  Security  Guards  who  remained  loyal 
shall  not  be  disturbed. 

"9.  Withdrawal  from  the  Government  of  Noske,  Minister  of  Defense,  and 
of  Heine,  who  have  already  handed  in  their  resignations." 

In  connection  with  this  agreement,  the  German  General  Federation  of  Trade- 
Unions,  the  Industrial  League  of  Free  Unions  of  Clerical  Employees,  and  the 
Federation  of  Government  Employees  issued  the  following  proclamation: 

"The  Conference  of  representatives  of  those  organizations  of  manual  workers, 
clerical  employees,  and  employees  in  the  public  service,  who  participated  in 
the  general  strike,  announces  that  although  it  is  not  entirely  satisfied  with  the 
terms  of  the  agreement  arrived  at  in  its  negotiations  with  the  representatives 
of  the  political  parties  in  the  Government,  it  nevertheless  approves  these  and 
hereby  declares  the  general  strike  terminated  as  of  this  day. — Berlin,  March 
20,  1920 — 7.05  A.M."  "Problems  of  Labor  and  Industry  in  Germany,"  Special 
Report  Number  15,  National  Industrial  Conference  Board,  September,  1920, 
pp.  45-47.  The  general  strike  was  not  in  fact  called  off  until  March  23,  after 
further  negotiations  and  agreement  with  the  Independent  Socialists. 


FUNCTIONAL  REPRESENTATION 


135 


than  the  constitution  itself.  Certain  it  is  that,  if  for  all 
time  to  come  the  trade-unions  of  Germany  are  to  have  the 
right  to  make  and  unmake  ministries  and  to  have  a  de- 
cisive voice  in  the  formulation  of  all  important  legislative 
policies,  functional  representation  of  labor  has  arrived  in 
Germany  full  grown  and  full  panoplied. 

Although  the  Austrian  constitution  contains  no  pro- 
vision on  the  subject,  it  is  nevertheless  of  interest  to  note 
that  a  Workers  Chamber  (Arbeiterkammer)  has  been  set 
up  in  each  of  the  Austrian  states  by  national  law.1  These 
Chambers,  varying  in  size  from  state  to  state,  consist  of 
representatives  of  (1)  manual  workers  and  of  (2)  clerical 
employees  in  private  industry,  and  of  (3)  manual  workers 
and  of  (4)  clerical  employees  in  certain  public  services.2 
The  functions  of  these  Chambers  are  almost  wholly  eco- 
nomic. The  mere  fact,  however,  that  they  are  involun- 
tary creatures  of  the  law  cannot  fail  to  give  them  a 
measure  of  political  signification. 

Finally,  attention  must  be  directed  to  the  brief  pro- 
nouncements of  three  other  constitutions.  "For  the 
framing  of  social  and  economic  legislation  the  economic 
council  is  created"  in  Jugoslavia.8  In  Poland  "a  special 
statute  will  create  .  .  .  economic  self-government" 
and  a  "Supreme  Economic  Council  of  the  Republic"  to 
collaborate  "  with  state  authorities,  in  directing  economic 
life  and  in  the  field  of  legislative  proposals."4  In  Danzig 
bills  may  be  introduced  into  the  legislature  "by  legally 
constituted  bodies  representing  the  various  professions 
and  trades";  and  "bills  dealing  with  economic  and  social 
questions  shall  be  submitted  to  these  bodies  for  their  ap- 
proval."5 Thus  in  Europe  is  functional  representation 
casting  its  portentous  shadow  before  it. 

'Laws  of  February  26,  1920,  and  of  October  1,  1920;  Staatsgcsetzblatt,  1920, 
Nos.  100,  469. 

2Wahlordnung  der  Kammern  ftir  Arbeiter  und  Angestellte,  Bundesgesetzblatt 
fur  die  Republik  Osterreich,  1920,  p.  27. 

'Art.  44.  4Art.  68.  »Art.  45;  see  also  Art.  114. 


Workers 
Chambers 
in  Austria 


Economic 
Councils  in 
other  States 


Secret 
diplomacy 
and  the 
World 
War 


Problem  of 
legislative 
control  of 
diplomacy 


CHAPTER  VII 
DEMOCRATS  AND  DIPLOMATS 

IN  HIS  Modern  Democracies,  Lord  Bryce  declared  that 
"the  adjustment  of  relations  between  the  Executive  and 
Legislature  in  the  conduct  of  foreign  affairs  has  been  one 
of  the  most  difficult  and  indeed  insoluble  problems  of  prac- 
tical politics."1  It  is  a  problem  to  which,  during  the  last 
few  years,  much  attention  has  been  devoted.  If  it  is  not 
true,  as  has  frequently  been  argued,  that  autocratic  meth- 
ods of  diplomacy  were  responsible  for  Europe's  plunge 
into  war,2  it  is  certain  that  statesmen  had  made  commit- 
ments concerning  which  great  self-governing  peoples  were 
ignorant;  and  it  is  arguable  that  greater  publicity  and  more 
effective  parliamentary  control  might  have  served  at  least 
to  delay  the  cataclysm.3  Naturally  enough,  therefore, 
the  problem  of  adjusting  the  relations  between  the  execu- 
tive and  legislature  in  the  management  of  foreign  affairs 
has  been  of  particular  interest  to  the  framers  of  the  new 
constitutions  of  Europe.  Recently  also  it  has  been  dis- 
cussed in  England,  France,  Italy,  Norway,  Sweden,  and 
Switzerland.  If  the  solution  is  not  evident,  it  is  at  least 
certain  that  the  extinction  of  monarchical  control  over 
foreign  affairs,  which  in  varying  degrees  existed  in  Russia, 
Germany,  and  Austria-Hungary,  has  been  an  immense 
gain.  The  new  instruments  of  government  all  attempt 
to  provide  a  measure  of  parliamentary  supervision,  either 

l\o\.  II,  p.  74  n. 

4See,  for  example,  E.  D.  Morel,  Ten  Years  of  Secret  Diplomacy  (London, 
1915);  A.  Ponsonby,  Democracy  and  Diplomacy  (London,  1915);  F.  Neilson, 
How  Diplomats  Make  War  (New  York,  1915). 

3Lord  Loreburn,  How  the  War  Came  (London,  1920). 

136 


DEMOCRATS  AND  DIPLOMATS  137 

through  a  requirement  that  treaties  must  be  ratified  by 
the  legislature  in  order  to  be  binding,  or  through  the 
agency  of  a  standing  committee  of  foreign  affairs.  Agree- 
ments need  not  be  openly  arrived  at,  and  secret  treaties 
there  still  are,  even  though  the  League  of  Nations  Cove- 
nant requires  that,  to  be  valid,  international  undertak- 
ings must  be  registered  with  the  League's  secretariat. 
But  dynastic  control  is  gone;1  the  right  of  democracies  to 
control  their  foreign  relations  is  rarely  challenged  in  prin- 
ciple; and  constitutional  changes  have  limited  the  exclu- 
sive competence  of  the  executive. 

The  problem  of  the  popular  control  of  diplomacy  is  of     Recent 
very  recent  origin.2     Indeed,  it  may  almost  be  said  that     origin  of 
with  regard  to  foreign  policy  our  systems  of  government          problem 
are  primitive.3     Law-making  bodies  have  been  democra- 
tized;   in    formulating    and    effectuating    internal    poli- 
cies representatives  attempt,  at  least  in  theory,  to  con- 
sult and  to  follow  the  wishes  of  the  people.     In  foreign 
affairs,  however,  either  through  indifference,  or  perhaps 

'The  stability  of  the  dynastic  system  in  Europe  "rested  very  largely  upon  the 
maintenance  of  peace.  It  was  the  failure  to  understand  this  on  the  part  of  the 
German  and  Bulgarian  rulers  in  particular  that  has  now  brought  all  monarchy 
to  the  question.  ...  In  the  days  when  Queen  Victoria  was  the  grandmother 
of  Europe  this  was  a  plausible  argument.  King,  Czar  and  Emperor,  or  Em- 
peror and  Emperor  would  meet.  It  was  understood  that  these  meetings  were 
the  lubrication  of  European  affairs.  The  monarchs  married  largely,  conspicu- 
ously, and  very  expensively  for  our  good.  Royal  funerals,  marriages,  christen- 
ings, coronations,  and  jubilees  interrupted  traffic  and  stimulated  trade  every- 
where. They  seemed  to  give  a  raison  d'etre  for  mankind.  It  is  the  Emperor 
William  and  the  Czar  Ferdinand  who  have  betrayed  not  only  humanity  but 
their  own  strange  caste  by  shattering  all  these  pleasant  illusions.  The  wisdom 
of  Kant  is  justified,  and  we  know  now  that  Kings  cause  wars.  It  needed  the 
shock  of  the  great  war  to  bring  home  the  wisdom  of  that  old  Scotchman  of 
Konigsberg  to  the  mind  of  the  ordinary  man."  H.  G.  Wells,  "The  Future  of 
Monarchy,"  The  New  Republic,  May  19,  1917. 

2With  regard  to  diplomacy,  "democracy  enters  on  a  province  alien  to  its  true 
character.  Diplomacy  demands  secrecy  and  the  concession  of  large  discretion- 
ary powers  to  its  agents.  Democracy  demands  the  discussion  of  every  impor- 
tant compact,  even  of  the  step  leading  to  such  compact,  by  the  people's  Cham- 
ber. Here  is  the  Achilles'  heel  of  popular  government,  and  autocrats  have  ever 
aimed  their  deadliest  shafts  at  this  vulnerable  point."  J.  Holland  Rose,  The 
Rise  and  Growth  of  Democracy  in  Great  Britain,  p.  237  (Chicago,  1898). 

3C.  D.  Burns,  International  Politics,  p.  120  (London,  1920).  For  an  elaborate 
discussion,  see  Barthelemy,  Democratic  et  politique  etrangbre,  Chapter  I  (Paris, 
1917). 


American 
practice 


Common 
Sense  in 
Foreign 
Policy 


138       NEW  CONSTITUTIONS  OF  EUROPE 

through  conviction  of  their  lack  of  special  competence, 
the  people  have  suffered  the  executive  to  exercise  a  wide 
and  largely  uncontrolled  discretion.  In  the  American 
experiment  it  was  assumed  that  there  would  be  no  ex- 
ception to  the  matters  entrusted  to  the  democracy;  the 
constitution  provided  for  the  senatorial  ratification  of 
treaties.  By  many  this  arrangement  was  considered  of 
doubtful  wisdom.1  It  antedated  by  a  century  the  develop- 
ment of  any  popular  control  in  England.  For,  although 
the  revolution  of  1688  may  have  established  the  principle 
that  all  political  power  comes  from  the  people,  it  was  not 
until  very  recent  times  that  the  direction  of  international 
policy  was  taken  out  of  the  hands  of  the  monarch,  to 
whom  by  curious  tradition  it  was  said  to  belong. 

In  1913  there  was  published  in  England  a  remarkable 
little  book  called  Common  Sense  in  Foreign  Policy.  The 
author  was  Sir  Harry  Johnston,  an  experienced  and  able 
colonial  servant.  He  surveyed  the  existing  questions  of 
world  politics,  and  ventured  predictions  to  which  the  war 
of  the  next  year  gave  striking  confirmation.  If  his  modest 
little  book  had  been  published  in  1 886,  Sir  Harry  remarked, 
it  "would  have  savored  of  indiscretion  or  impertinence." 


JThis  attitude,  for  example,  was  well  expressed  by  De  Tocqueville : 
"As  for  myself,  I  do  not  hesitate  to  say  that  it  is  especially  in  the  conduct  of 
their  foreign  relations  that  democracies  appear  to  me  decidedly  inferior  to  other 
governments.  Experience,  instruction,  and  habit  almost  always  succeed  in 
creating  in  a  democracy  a  homely  species  of  practical  wisdom,  and  that  science 
of  the  petty  occurrences  of  life  which  is  called  good  sense.  Good  sense  may 
suffice  to  direct  the  ordinary  course  of  society;  and  amongst  a  people  whose  edu- 
cation is  completed,  the  advantages  of  democratic  liberty  in  the  internal  affairs 
of  the  country  may  more  than  compensate  for  the  evils  inherent  in  a  democratic 
government.  But  it  is  not  always  so  in  the  relations  with  foreign  nations. 

"Foreign  politics  demand  scarcely  any  of  those  qualities  which  are  peculiar 
to  a  democracy;  they  require,  on  the  contrary,  the  perfect  use  of  almost  all  those 
in  which  it  is  deficient.  ...  A  democracy  can  only  with  great  difficulty 
regulate  the  details  of  an  important  undertaking,  persevere  in  a  fixed  design, 
and  work  out  its  execution  in  spite  of  serious  obstacles.  It  cannot  combine 
its  measures  with  secrecy,  or  await  their  consequences  with  patience."  The 
natural  defects  of  aristocracy  do  not  injure  the  direction  of  external  affairs. 
"The  capital  fault  of  which  aristocracies  may  be  accused  is,  that  they  work  for 
themselves,  and  not  for  the  people.  In  foreign  politics,  it  is  rare  for  the  interest 
of  the  aristocracy  to  be  distinct  from  that  of  the  people."  Democracy  in  Amer- 
ica, Chapter  XIII. 


DEMOCRATS  AND  DIPLOMATS 


139 


In  those  days,  a  country's  relations  with  its  neighbors  or  with 
distant  lands  were  dealt  with  almost  exclusively  by  the  head 
of  the  State — Emperor,  King,  or  President — acting  with  the 
more-or-less  dependent  Minister-of-State,  who  was  no  repre- 
sentative of  the  masses,  but  the  employe  of  the  Monarch. 
Events  were  prepared  and  sprung  on  a  submissive,  a  confident, 
or  a  stupid  people.  The  public  Press  criticized,  more  often 
applauded,  but  had  at  most  to  deal  with  a,  fait  accompli  and  make 
the  best  of  it.  Occasionally,  in  our  own  land,  a  statesman,  out 
of  office  and  discontented,  went  round  the  great  provincial 
towns  agitating  against  the  trend  of  British  foreign  policy — 
perhaps  wisely,  perhaps  unfairly,  we  do  not  yet  know — and 
scored  a  slight  success.  But  once  in  office,  his  Cabinet  fell  in 
by  degrees  with  the  views  of  the  Sovereign  and  the  permanent 
officials  (after  the  fifties  of  the  last  century  these  public  servants 
were  a  factor  of  ever-growing  importance) ;  and,  as  before,  the 
foreign  policy  of  the  Empire  was  shaped  by  a  small  camarilla 
consisting  of  the  Sovereign,  two  Cabinet  Ministers,  the  perma- 
nent Under-Secretary  of  State  for  Foreign  Affairs,  and  perhaps 
one  representative  of  la  plus  haute  finance.1 

The  Times  was  the  only  English  newspaper  that  had 
any  independent  sources  of  information  about  foreign 
affairs  and  its  connection  with  successive  governments 
was  very  close.2  Practically  its  only  attempt  at  opposi- 
tion was  with  regard  to  the  policy  of  Gladstone.  Foreign 
policy  was  still  "the  natural  employment  of  courts  and 
monarchies."3 

That  theory  prevailed  on  the  continent  until  the  conclu- 
sion of  the  war.  Russia  was  the  extreme  example.  The 
Czar  was  supreme;  management  of  foreign  policy  was  his 
prerogative.  He  declared  war,  decided  on  peace,  and 
concluded  treaties.  The  right  of  interpellation  and  de- 
bate in  the  Douma  was  so  limited  as  to  be  valueless;  the 
Minister  for  Foreign  Affairs  could  make  a  statement  only 
with  the  express  permission  of  the  Emperor.  In  Ger- 
many, the  Reichstag  did  possess  some  slight  authority,  and 
upon  occasions  like  that  of  the  Daily  Telegraph  interview 

'Johnston,  Common  Sense  in  Foreign  Policy,  pp.  1-2. 

«See  Sir  Edward  Cook,  Delane  of  The  Times  (London,  1916). 

3H.  G.  Wells,  The  Outline  of  History,  Vol.  II,  p.  216  (New  York,  1920). 


English 
practice 
in  1886 


Press 
influence 


Continental 
practice 


Queen 
Victoria 
in  foreign 
affairs 


140       NEW  CONSTITUTIONS  OF  EUROPE 

it  was  able  to  exert  some  influence;  but  the  powers  of  the 
Emperor  were  great.1  His  correspondence  with  the  Czar2 
and  his  annotations  on  the  Kautsky  documents  are  not 
mere  illustrations  of  Hohenzollern  idiosyncrasies;  they  are 
also  significant  in  a  constitutional  sense.3  In  continental 
countries  with  cabinet  responsibility,  the  constitutions  did 
not  require  certain  treaties  to  be  laid  before  the  legislature, 
and  the  executive  had  in  consequence  large  discretion.4 
With  the  disappearance  of  kings  all  this  has  been  changed. 
Japan  is  now  the  only  great  power  in  which  there  is  not 
even  a  pretence  of  popular  control.5 

In  England,  as  Sir  Harry  Johnston  said,  not  until  re- 
cently has  Parliament  asserted  much  control;  but  the 
principal  problem  has  been  with  regard  to  the  constitu- 
tional rather  than  the  titular  executive.  The  Cabinet, 
that  is  to  say,  rather  than  the  Crown,  has  possessed  the 
power,  and  the  question  has  been  as  to  the  measure  of 
parliamentary  control.  Nevertheless,  even  in  recent 
years  the  royal  authority  has  been  far  from  negligible. 
Mr.  Strachey's  incomparable  biography  by  no  means  tells 
the  whole  story  of  the  influence  exerted  by  Queen  Victoria 
with  the  able  assistance  of  her  husband,  who  was  also,  as 
he  told  the  Duke  of  Wellington  in  1850,  her  "private 
secretary,  her  permanent  minister,  and  her  sole  confiden- 
tial adviser  in  politics."6 

aD.  P.  Myers,  in  his  Notes  on  the  Control  of  Foreign  Relations  (Central  Organiz- 
ation for  a  Durable  Peace,  1917)  magnifies  this  parliamentary  control. 

8N.  F.  Grant  (ed.),  The  Kaisers  Letters  to  the  Tsar:  Tlte  Willy-Nicky  Corre- 
spondence (London,  1920). 

3"  Who  authorized  him  to  do  this?"  was  the  note  when  the  German  ambassa- 
dor urged  moderation  on  Austria.  "The  Serbs  must  be  finished  as  soon  as 
possible."  "Serbia's  national  dignity  does  not  exist,"  the  Kaiser  wrote  on  a 
dispatch  from  Lichnowsky.  "The  question  has  nothing  to  do  with  Grey;  it  is  his 
Majesty  Francis  Joseph's  affair.  What  gigantic  British  impudence!"  Karl 
Kautsky,  Comment  s'est  declenchte  la  guerre  mondiale,  pp.  53,  131  (Paris,  1921). 

4See  President  Poincare's  book  Les  origines  de  la  guerre  (Paris,  1921)  which 
discusses  his  own  share  in  the  Anglo-French  agreements;  see  also  his  How  France 
Is  Governed,  p.  165  ff.  (New  York,  1914). 

'See  Willoughby  and  Rogers,  op.  cit.  pp.  375  ff. 

"Martin,  Life  of  the  Prince  Consort,  Vol.  II,  pp.  259,  260.  "A  foreign  Baron 
(Stockmar)  controlled  a  foreign  Prince,  and  the  foreign  Prince  controlled  the 


DEMOCRATS  AND  DIPLOMATS 


141 


During  the  reign  of  Victoria  the  most  important  consti- 
tutional incident  was  the  difference  of  opinion  between 
the  Queen  and  Lord  Palmerston.  In  that  struggle  (1851) 
"all  the  weight  of  experience  was  on  Palmerston's  side, 
and  their  victory  over  him  was  the  victory  of  anti-liberal 
principles  in  foreign  policy.  And  it  was  won  at  the  ex- 
pense of  the  nation  by  the  Court's  successful  assertion  of 
its  claim  to  a  dominant  control  over  foreign  affairs.  Of 
the  Parliament  that  was  behind  the  Minister  or  of  the 
public  that  was  behind  Parliament  there  is  no  evidence 
derivable  from  the  Royal  correspondence  that  the  Court 
took  the  smallest  account.  Foreign  policy  came  to  be 
considered  as  a  matter  to  be  solely  or  mainly  directed  by 
the  Crown,  and  if  the  Crown  and  the  country  took  diver- 
gent views  it  was  the  views  of  the  Crown  that  had  the 
right  to  prevail."  It  was  the  Crown  that  asserted  "the 
unfettered  right  to  approve  or  disapprove  the  choice  of  a 
Minister  for  the  office."1 

The  right  to  offer  advice  became  the  right  to  withhold 
consent,  or  at  least  to  force  ministerial  concessions.  Thus 
the  Queen  wrote  to  Lord  Clarendon  on  July  24,  1855: 
"Having  read  the  whole  of  these  documents,  she  con- 
fesses that  she  requires  some  explanation  as  to  the  advan- 
tages which  are  to  arise  to  England  from  the  proposed 
treaty,  before  she  can  come  to  any  decision  about  it."5 
Again,  the  English  Ambassador  at  Paris  was  told  that 
"the  Queen  cannot  understand  how  Lord  Cowley  can  pro- 
pose anything  so  indefensible  in  a  moral  point  of  view."3 

It  matters  not  that  the  influence  of  the  Crown  was 
beneficial  and  in  some  cases  imposed  very  wise  restraints 
on  ministerial  action.  From  the  standpoint  of  the  con- 
Crown  of  England.  And  the  Crown  itself  was  creeping  forward  ominously; 
and  when,  from  under  its  shadow,  the  Baron  and  the  Prince  had  frowned,  a 
great  Minister,  beloved  of  the  people,  had  fallen.  Where  was  all  this  to  end?" 
Strachey,  Queen  Victoria,  p.  251  (New  York,  1920). 

JJ.  A.  Farrar,  The  Monarchy  in  Politics,  pp.  228-229  (New  York,  1917). 

^Letters  of  Queen  Victoria,  Vol.  Ill,  p.  169;  Farrar,  op.  cit.,  p.  194. 

^Letters  of  Queen  Victoria,  Vol.  Ill,  p.  435. 


Foreign 
policy 
determined 
by  the 
Crown 


Illustrations 


Conflict 
of  control 
between 
Crown  and 
Parliament 


142       NEW  CONSTITUTIONS  OF  EUROPE 

stitution,  the  problem  was  serious.  The  sovereign,  who 
was  a  Queen,  wove  the  threads  of  England's  foreign  policy. 
In  1874,  for  example,  Victoria  planned  to  go  to  Balmoral 
two  days  before  the  departure  from  London  of  the  Czar 
who  was  in  England  for  the  marriage  of  his  daughter  to 
the  Duke  of  Edinburgh.  When  it  was  pointed  out  to  her 
Majesty  that  this  would  be  gravely  impolite  and  that 
serious  consequences  might  ensue,  she  remained  adamant; 
her  plans  could  not  be  changed.1  Lord  Derby,  Lord  Salis- 
bury, even  the  Prince  of  Wales,  could  not  dissuade  her; 
but  Disraeli  succeeded.  "Salisbury,"  he  wrote,  "says 
that  I  have  saved  an  Afghan  War,  and  Derby  compli- 
ments me  on  my  unrivalled  triumph."  The  delay  was 
made,  the  Queen  confessed,  "for  Disraeli's  sake  and  as  a 
return  for  his  great  kindness."2  The  blandishments  used 
were  extra-constitutional,  but  the  whole  theory  of  the 
English  constitution  is  that  the  checks  on  the  Crown 
should  be  definite  and  effective;  that  nothing  should  de- 
pend upon  the  finesse  of  the  statesman  who  happens  to  be 
Prime  Minister.3  The  Sovereign  had  claimed  and  had 
succeeded  in  securing  a  control  of  diplomacy  far  greater 
than  foreign  ministers  had  allowed  the  three  preceding 
kings,  and  the  struggle  was  not  without  its  effect  on  the 
share  that  Parliament  could  assert  in  the  conduct  of  foreign 
relations.  The  result  was  "that  successive  Foreign  Min- 
isters found  themselves  confronted  with  two  responsible 
ties,  of  which  that  to  the  Crown  tended  to  override  that 
to  Parliament,  and  to  bring  about  that  impotence  of 
Parliament  over  foreign  policy  which  has  now  reached 
the  stage  of  complete  paralysis.  Now  for  better,  now  for 
worse,  a  dual  and  often  conflicting  control  was  set  up, 


'Strachey,  op.  cit.,  p.  357. 

2Monypenny  and  Buckle,  The  Life  of  Benjamin  Disraeli,  Vol.  V,  p.  415  (New 
York,  1920). 

3In  1877  Victoria  told  Disraeli  that  "  if  England  is  to  kiss  Russia's  feet,"  the 
Queen  "would  lay  down  her  Crown."  The  Queen  would  be  "so  humiliated  that 
she  thinks  she  would  abdicate  at  once.  Be  bold."  Strachey,  op.  cit.,  p.  363. 


DEMOCRATS  AND  DIPLOMATS 


143 


and  whilst  in  domestic  affairs  the  Court  bowed,  however 
reluctantly,  to  the  Cabinet,  in  foreign  affairs  its  claim  to  a 
concurrent  or  even  dominant  power  was  the  main  political 
result  of  the  Queen's  reign."1 

In  politics  the  play  of  chance  has  effects  which  are 
sometimes  overlooked.2  Queen  Victoria's  widowhood  was 
an  accident  that  prevented  further  accretions  of  royal 
power.  Gladstone's  friendship  was  also  a  restraining  in- 
fluence. He  viewed  with  disfavor  the  concessions  that 
Disraeli  had  made,  and  he  was  none  the  less  alarmed  be- 
cause tactful  flattery  and  not  constitutional  right  was 
Disraeli's  resource.  That  the  sovereign  should  be  told 
what  transpired  in  cabinet  meetings  seemed  to  Gladstone 
particularly  dangerous.3  During  his  long  premiership, 
therefore,  the  constitutional  executive  asserted  more  and 
more  independence.  Then  came  another  accident. 

Mr.  Strachey's  picture  of  Victoria's  son,  a  mature 
Prince  of  Wales,  late  for  dinner,  nervously  delaying  the 
moment  of  receiving  his  mother's  reproof,  does  not  fore- 
cast a  king  who  would  take  a  prominent,  independent  part 
in  European  politics  and  who  would  raise  more  serious 
constitutional  questions  than  had  been  before  England  in 
a  century.4  Yet  that  was  the  case.  Victoria's  influence 
was  always  exerted  through  her  ministers,  but  Edward 
VII  worked  directly.  He  was  known  as  "the  great  inter- 
national statesman"  and  "the  European  peacemaker." 
There  was  no  precedent  for  this  practice  before  the  foreign 
secretaryship  of  Lord  Lansdowne.  The  King  made 
several  visits,  unattended  by  any  member  of  the  Cabinet, 


'Farrar,  The  Monarchy  in  Politics,  p.  192. 
!See  Willoughby  and  Rogers,  op.  cit.,  p.  9. 

3See  Monypenny  and  Buckle,  op.  cit.,  Vol.  VI,  p.  454;  Morley,  Life  of  Glad- 
stone, Book  XII,  Chapter  5. 

'Strachey,  op.  cit.,  p.  887.  "What,  indeed,"  wrote  Hallam,  "might  be  af- 
fected by  a  king  at  once  able,  active,  popular  and  ambitious,  should  such  ever 
unfortunately  appear  in  this  country,  it.  is  not  easy  to  predict;  certainly  his  reign 
would  be  dangerous  on  one  side  or  other  to  the  present  balance  of  the  Constitu- 
tion." Constitutional  History  of  England,  Vol.  Ill,  p.  297. 


The  play  of 
chance 


Influence 
of  Edward 
VII 


144       NEW  CONSTITUTIONS  OF  EUROPE 


Question  of 
constitu- 
tionality 


to  the  King  of  Italy,  the  Emperor  of  Germany,  the  Presi- 
dent of  the  French  Republic,  and  the  Czar  of  Russia.1 
He  carried  on  a  correspondence  with  the  heads  of  foreign 
powers  without  the  interference  of  the  Secretary  of  State 
for  Foreign  Affairs.  A  generation  before,  this  would  have 
been  unconstitutional;  to-day  it  would  be  equally  so.2 
The  facts  concerning  it  did  not  come  to  light  until  re- 
cently;3 and  the  future  historian  will  have  to  determine 

'An  experienced  and  well-informed  observer  wrote  in  1908:  "All  the  diplomacy 
is  done  by  Hardinge  and  the  King,  while  Grey  is  their  mouth-piece  in  the  House 
of  Commons,  having  a  fine  presence  and  an  impressive  manner  with  a  wonder- 
fully fine  speaking  voice."  Wilfred  Scawen  Blunt,  My  Diaries,  Vol.  II,  pp. 
204-285  (New  York,  1921).  Upon  the  death  of  the  King  the  same  diarist 
wrote:  Edward  VII  "knew  Europe  well,  and  exactly  what  foreigners  thought  of 
England.  The  knowledge  was  of  use  to  him  and  to  our  Foreign  Office,  especially 
under  such  insular  Secretaries  of  State  as  Arthur  Balfour  and  Edward  Grey. 
.  .  .  He  stopped  the  Boer  War,  knowing  how  unpopular  it  was  making  Eng- 
land on  the  Continent  and  everywhere,  and  how  much  we  were  becoming  de- 
spised for  our  childish  attempts  at  subduing  this  sturdy  little  people.  .  .  . 
The  Anglo-Russian  treaty  he  did  off  his  own  bat  with  Hardinge,  Sir  Edward 
Grey  looking  on.  His  only  notable  failure  was  in  the  affair  of  Bosnia,  and 
people  in  England  knew  too  little  of  the  conditions  to  understand  how  great  a 
failure  it  was.  Also,  he  never  succeeded  in  making  friends  with  his  nephew 
Wilhelm,  and  I  fancy  they  hated  each  other  to  the  end."  Ibid.,  Vol.  II,  p.  308. 

'The  practice  was  correctly  stated  by  Mr.  Todd  in  1887:  "At  every  interview 
between  the  sovereign  and  the  minister  of  any  foreign  court,  it  was  the  duty  of 
the  secretary  of  state  for  foreign  affairs  to  be  present.  Private  communication 
between  a  king  of  England  and  foreign  ministers  is  contrary  to  the  spirit  and 
practice  of  the  British  constitution.  .  .  . 

"Moreover,  it  is  not  usual  for  the  king  of  England  to  receive  from  other 
sovereigns  letters  upon  public  questions  which  do  not  pass  through  the  hands 
of  his  ministers;  and  sometimes  such  letters  have  been  returned,  because  copies 
were  not  sent  (with  the  sealed  letter)  for  the  information  of  the  minister.  It  is 
still  more  unusual  and  improper  for  the  king  to  answer  a  letter  from  another 
sovereign  without  the  advice  of  his  minister,  who,  whether  he  advises  or  does 
not,  is  responsible  if  he  knows  of  the  letter  being  written."  Parliamentary 
Government  in  England,  Vol.  I,  pp.  83-84  (ed.  Walpole).  Mr.  Todd  cites  the  case 
of  a  letter  to  Queen  Victoria  from  the  King  of  Prussia,  who  requested  his  ambas- 
sador to  deliver  it  at  a  private  audience.  Prince  Albert  detected  the  irregular- 
ity and  the  letter  was  read  in  the  presence  of  the  Foreign  Secretary. 

'See  the  three  letters  of  Sir  Sidney  Lee  (the  King's  biographer)  in  the  London 
Times,  July  21,  22,  and  23,  1921.  Lord  Esher  scouted  the  idea  that  the  King 
had  taken  any  independent  action.  "  The  popular  idea,  outside  the  British  Isles, 
that  King  Edward  moulded  the  Foreign  policy  of  this  country  is  of  course  pure 
illusion.  .  .  .  He  always  recognized  that  to  initiate  the  policy  of  Great 
Britain  was  the  business  of  ministers  for  the  time  being,  and  his  function  was  to 
criticize  or  approve  it,  and  finally  to  support  it  with  all  his  powers.  .  .  . 
The  Foreign  policy  of  the  Ministry  of  the  day  was  in  his  eyes — as  under  a  con- 
stitutionalgovernment  it  must  be  assumed  to  be — the  policy  of  the  nation,  and 
therefore  the  settled  policy  of  the  Sovereign."  Lord  Esher,  The  Influence  of 
King  Edward  and  Other  Essays,  pp.  50-51  (London,  1915). 


DEMOCRATS  AND  DIPLOMATS  145 

whether  Edward's  work,  for  the  moment  successful  in 
preserving  peace,  was,  on  the  whole,  for  the  best;  or 
whether  England  should  not  have  avoided  such  definite 
commitments  toward  Russia  and  France.  Both  Conserv- 
ative and  Liberal  Cabinets,  however,  consented  to  the 
King's  taking  the  initiative,  the  theory  being  that  there 
was  no  encroachment  on  ministerial  responsibility,  since 
ministers  were  open  to  reject  the  King's  suggestions.  But, 
as  a  recent  critic  has  pointed  out: 

The  action  of  the  Sovereign  on  his  own  initiative  in  foreign 
affairs,  so  long  as  a  system  of  secret  diplomacy  prevails,  must 
render  it  a  matter  of  uncertainty  whether  the  Cabinet,  who  can 
only  follow  the  suggestions  of  the  Sovereign  by  making  them 
their  own,  are  adopting  a  line  of  action  consonant  with  their 
own  views,  or  a  policy  against  their  own  inclination,  but  pressed 
on  them  owing  to  a  situation  created  by  the  independent  action 
of  an  irresponsible  Sovereign.  Interviews  of  the  Sovereign  with 
foreign  Ministers  and  the  heads  of  foreign  States,  unaccom- 
panied with  a  responsible  Cabinet  Minister,  and  letters  written 
by  the  Sovereign  to  these  personages  on  his  own  initiative,  un- 
read and  unre vised  by  responsible  Ministers — in  fact  independ- 
ent action  in  foreign  affairs  by  the  Sovereign — must  invariably, 
under  a  system  of  secret  diplomacy,  have  the  character  of  initiat- 
ing and  formulating  a  policy  in  such  a  way  as  directly  or  indi- 
rectly to  influence  Ministers  of  the  Crown  far  more  powerfully 
than  was  probably  intended.  Independent  action  on  the  part 
of  the  Sovereign,  while  it  may  or  may  not  be  an  "encroachment" 
on  Ministerial  responsibility,  must  be  a  potent  factor  in  the 
moulding  of  Ministerial  policy — and  as  such  is  contrary  to  the 
theory  and  the  practice  of  the  Constitution,  however  beneficial 
its  results  in  some  cases  may  be.1 

JJ.  G.  Swift  MacNeill,  "Foreign  Policy  and  Royal  Influence,"  Fortnightly 
Review,  December,  1921.  Concerning  the  future,  Mr.  MacNeill  says:  "The 
Great  War  has  made  intelligent  participation  by  the  people  in  the  foreign  policy 
of  the  Government  of  this  country  absolutely  unavoidable.  In  every  step  of 
foreign  policy  they  must  be  henceforth  fully  informed  and  consulted  and  obeyed. 
Viscount  Bryce  wrote  in  1886:  'The  day  may  come  when  in  England  the  question 
of  limiting  the,  at  present,  all  but  unlimited  discretion  of  the  Executive  in  foreign 
affairs  will  have  to  be  dealt  with.'  That  day  has  now  come.  Its  coming  has 
been  manifested  by  the  full  and  free  communication  to  the  people  of  these  coun- 
tries of  the  foreign  policy  of  the  Government,  which  is  subject  to  their  revision 
and  control.  A  Cabinet  which  no  longer  can  control  a  foreign  policy  itself 
cannot  give  the  control  of  that  policy  to  a  Sovereign.  The  control  of  foreign 
policy  asserted  since  the  war  by  the  people  would  alone  prevail  to  render  control 
of  that  policy  by  a  Sovereign  an  impossibility." 


Doubtful 
results  of 
his  policy 


Uncertainty 
of  respon- 
sibility 


146       NEW  CONSTITUTIONS  OF  EUROPE 


Variable- 
ness in  the 
rdle  of 
the  Crown 


Bagehot's 
view 


It  seems  certain  that,  with  respect  to  foreign  policy, 
George  V  has  had  much  less  concern  than  his  father,1 
although  there  will  probably  be  disclosures  that  the 
Crown  played  a  not  inconsiderable  part  in  the  Balkan  and 
Russian  diplomacy  of  the  war.  This  problem  of  royal 
influence  is  an  excellent  illustration  of  the  peculiarly  flex- 
ible character  of  the  English  constitution.  In  Lord 
Courtney's  words:  "The  special  and  almost  unique  charac- 
teristic of  the  Constitution  is  that  it  is  subject  to  constant 
and  continuing  growth  and  change.  It  is  a  living  organ- 
ism absorbing  new  facts  and  transforming  itself.  Its 
changes  are  sometimes  considerable,  even  violent,  and 
then  for  long  periods  the  movement  is  almost  impercepti- 
ble, although  it  is  quickly  realized  when  we  compare  the 
outcome  presented  at  different  points  of  time.  The 
Constitution  of  to-day  is  different  from  what  it  was  fifty 
years  since  and  fifty  years  hence  it  will  certainly  be  differ- 
ent from  what  it  is  to-day."2 

For  more  than  a  half  century  the  control  of  diplomacy 
has  been  discussed  in  England.  Bagehot  expressed  the 
opinion  that  "treaties  are  quite  as  important  as  most  laws 
and  to  require  the  elaborate  assent  of  representative  as- 
semblies to  every  word  of  the  law  and  not  to  consult  them 
even  as  to  the  essence  of  the  treaty  is  prima  facie  ludi- 
crous." If  it  was  argued,  he  said,  that  the  whole  truth 
could  not  be  told  as  to  treaties,  his  answer  would  be  that 
the  whole  truth  could  not  be  told  as  to  laws;  for  all  import- 
ant laws  affected  vested  interests  which  had  to  be  treated 
just  as  delicately  and  with  as  much  manipulation  of  lan- 
guage as  the  feelings  of  any  foreign  country.3 

J" Nobody  in  England  has  now  any  fear  of  interference  on  the  part  of  the 
Crown,  for  the  conduct  both  of  the  last  sovereign,  Edward  VII,  and  of  the  pres- 
ent sovereign  is  understood  to  have  been  irreproachably  constitutional  in  every 
respect,  and  has  never  elicited  popular  criticism."  Lord  Bryce,  "The  Life  of 
Disraeli,  V,  VI,"  American  Historical  Review,  Vol.  XXVI,  p.  682  (July,  1921). 

*The  Working  Constitution  of  the  United  Kingdom  and  Its  Outgrowth,  p.  3  (New 
York,  1901). 

*The  English  Constitution,  pp.  35-42  (2nd  American  ed.). 


DEMOCRATS  AND  DIPLOMATS 


147 


The  instruments  of  control  over  foreign  affairs  by  Par- 
liament have  for  the  most  part  been  indirect— the  general 
responsibility  of  the  cabinet,  the  control  of  the  purse,  the 
debate  on  the  Foreign  Office  vote,  and  questions  addressed 
to  the  Secretary  of  State  for  Foreign  Affairs.  None  of 
these  has  been  very  effective.  The  Cabinet  now  domi- 
nates the  Commons.  To  deny  supplies  is  a  dangerous 
weapon  for  the  legislature  to  use.  Sessions  have  passed 
without  a  debate  on  the  Foreign  Office  vote.1  And  if  they 
have  not  sacrificed  their  veracity,  ministers  have  at  least 
been  exceedingly  skilful  in  answering  questions.  Thus, 
before  the  war  the  "obligations  of  honor"  toward  France 
were  inquired  about  several  times  in  the  House  of  Com- 
mons, but  the  extent  of  England's  commitments  was  not 
disclosed.2 

A  parliamentary  committee  on  foreign  affairs  has  been 
proposed  a  number  of  times.3  More  than  once  Parlia- 
ment has  discussed  the  advisability  of  subjecting  all 
treaties  to  legislative  ratification;  on  one  occasion  a  motion 
to  this  effect  failed  by  only  four  votes.4  After  the  con- 
clusion of  the  Peace  Conference  the  Prime  Minister  did 
introduce  "a  bill  for  carrying  into  effect  the  Treaty  of 
Peace  between  His  Majesty  and  certain  other  Powers." 
Unquestionably  this  created  a  momentous  precedent  of 
genuine  constitutional  significance.  Was  this  a  recogni- 
tion of  the  right  of  Parliament  to  control  foreign  policy; 
or  was  the  practice  resorted  to  more  by  grace  of  the  execu- 
tive than  because  of  any  positive  demand  on  the  part  of 
the  House  of  Commons?  The  proposed  Anglo-American 

^onsonby,  Democracy  and  Diplomacy,  p.  50. 

5See  Parliamentary  Questions,  March  24, 1913;  June  11, 1914;  and  Lord  Lore- 
burn,  How  the  War  Came,  p.  102. 

3For  references  to  the  debates  see  Heatley,  Diplomacy  and  the  Study  of  Inter- 
national Relations,  p.  265;  and  Willoughby  and  Rogers,  op.  cit.,  p.  250. 

4March  19,  1886.  In  the  debate  Mr.  Gladstone  said:  "The  present  system 
cannot  possibly  be  defended  as  an  ideal  system,"  but  he  protested  that  executive 
and  legislative  functions  should  not  be  mixed  up  and  that  the  House  of  Com- 
mons in  its  legislative  capacity  could  not  take  upon  itself  executive  duties. 


Indirect 
control 
by  the 
Commons 


Peace 

Treaty 

submitted 

to 

Parliament 


Commons 
not 

consulted 
apart  from 
treaties 


148       NEW  CONSTITUTIONS  OF  EUROPE 


Instance 
of  the 

Mesopo- 

tamian 

Mandate 


guarantee  to  France  contained  a  specific  clause  that  it 
should  not  become  binding  without  parliamentary  ap- 
proval; but  that  was  probably  an  evidence  of  the  desire 
of  Mr.  Lloyd  George  to  avoid  responsibility  rather  than 
a  recognition  of  Parliament's  constitutional  right.  Since 
the  Peace  Conference,  furthermore,  it  is  notorious  that 
England's  foreign  policy  has  been  conducted,  apart  from 
the  making  of  treaties,  with  slight  consultation  with  the 
House  of  Commons. 

One  interesting  illustration  of  this  was  furnished  in 
February,  1921,  when  the  government  was  asked  for  a 
copy  of  the  Mesopotamian  Mandate.  Mr.  Bonar  Law, 
the  then  leader  of  the  Government  in  the  House  of  Com- 
mons, laid  down  the  startling  proposition,  not  only  that 
the  Mandate  must  be  submitted  to  the  League  of  Nations 
first,  but  also  that  thereafter  there  was  no  power  in  the 
Commons  to  revoke  it  even  in  the  matter  of  financial 
responsibility.  This  meant  that  the  English  Parliament 
might,  without  its  knowledge,  be  committed  to  foreign 
adventures  of  very  serious  consequences  and  entailing 
material  expenditures;  the  House  of  Commons  could  do 
nothing  except  express  a  lack  of  confidence  in  the  ministry 
after  the  fact.  Immediately  there  was  an  outcry  in  the 
press  and  in  Parliament.  On  February  23  the  Govern- 
ment reconsidered  its  extreme  position.  Mr.  Bonar  Law 
said:  "We  shall  circulate  the  terms  of  the  mandates, 
which  have  already  been  submitted  to  the  League  of  Na- 
tions, to  the  House.  I  may  add,  however,  that  in  our 
view  this  is  very  similar  to  the  negotiation  of  a  treaty  which 
must  be  carried  out  by  the  Government  of  the  day.  But 
of  course,  as  in  the  case  of  a  treaty,  Parliament  would 
have  the  right  to  refuse  to  adopt  it."1  With  that  state- 

1See  letters  to  the  London  Times,  February  23,  February  24,  March  22,  1921, 
and  the  debate  in  the  House  of  Lords,  March  14,  1921.  A  letter  of  Sir  Eric 
Drummond,  Secretary  General  of  the  League  of  Nations,  announced  that  it 
was  no  concern  of  the  League  "whether  or  not  the  terms  of  the  mandate  were 
discussed  by  the  legislature  of  the  mandatory  power  before  submission  to  the 
Council."  The  London  Times  (weekly  ed.),  April  15,  1921. 


DEMOCRATS  AND  DIPLOMATS  149 

ment  of  existing  constitutional  practice  Parliament  was 
apparently  content.1 

In  Italy  Signor  Giolitti  proposed  to  amend  the  constitu- 
tion so  as  to  require  treaties  to  be  approved  by  Parliament. 
His  bill  provided  that  "treaties  and  international  under- 
standings, whatever  their  subject  and  their  character,  are 
only  valid  after  they  have  been  approved  by  Parliament. 
The  government  of  the  King  can  only  declare  war  with 
the  approval  of  the  two  chambers."  In  urging  his  bill 
Signor  Giolitti  said  that  "foreign  policy  should  be  subject 
to  the  widest  and  freest  possible  discussions  in  Parliament 
and  the  people  ought  to  feel  assured  that  it  be  directed 
above  all  things  to  the  ends  of  peace  and  constructive 
work";  but  Signor  Giolitti  went  out  of  office  before  his 
bill  could  be  passed  at  the  session  of  1921. 2 

Parliamentary  control  in  Norway  is  more  a  matter  of 
custom  than  of  constitutional  provision.  No  Norwegian 
Government  can  now  venture  to  make  any  treaty  or  other 
agreement  with  foreign  powers,  whether  dealing  with  mil- 
itary, commercial,  or  other  relations,  without  first  sub- 
mitting such  treaties  or  agreements  to  Parliament  for  its 
sanction.  The  usual  procedure  is  for  a  special  parliamen- 
tary committee  to  be  set  up  for  the  purpose  of  examining  the 
so-called  secret  protocols  of  the  Government.  These  proto- 
cols disclose  the  decisions  made  by  the  Cabinet  concerning 
military  matters  and  secret  diplomatic  affairs.  The  com- 
mittee reports  to  Parliament  how  the  subjects  dealt  with 
have  been  handled  by  the  Government  and  approves  or 

1"The  contention  of  Lord  Loreburn,  that  'we  are  not  a  self-governing  nation 
in  foreign  affairs '  is  truer  to-day  than  it  ever  was.  There  is  no  real  parliamen- 
tary control; '  the  idea  of  a  Foreign  Affairs  Committee  in  the  House,  such  as  most 
foreign  Chambers  possess,  has  been  allowed  to  drop,  and  any  real  reform  of  the 
diplomatic  service  is  as  far  off  as  ever.  Facts  such  as  these  explain  the  function 
of  the  'Council  of  Action';  the  underlying  notion  was  sound,  though  the  pro- 
cedure was  a  defiance  of  sound  constitutional  practice.  Foreign  politics  are 
pre-eminently  a  field  in  which  neglect  exacts  bitter  punishment,  and  we  could 
have  wished  that  it  was  still  possible  to  play  the  mosquito  to  a  deadened  public 
opinion."  "A  Farewell  Survey,"  The  New  Europe,  October  28,  1920. 

*E.  D.  Morel,  "Giolitti's  Bill  to  Abolish  Secret  Diplomacy,"  Foreign  Affair*, 
January,  1921. 


Giolitti's 
proposal 
in  Italy 


Norwegian 
practice 


150       NEW  CONSTITUTIONS  OF  EUROPE 


Swedish 
practice 


French 
Commission 
on  Foreign 
Affairs 


Control  of 
foreign 
affairs  in 
the  new 
governments 


criticizes  the  Government's  acts.  It  may  thus  be  said  that 
"  Parliament  is  in  due  course  made  acquainted  with  all  the 
decisions  of  the  Government  in  regard  to  foreign  affairs, 
and  it  is  of  course  true  that  the  mere  existence  of  this  post 
control  has  a  certain  preventive  effect  because  the  Govern- 
ment must  always  be  prepared  to  answer  for  all  its  acts  of 
Parliament."1 

A  similar  commission  is  provided  in  Sweden  to  confer 
with  the  King  as  frequently  as  he  summons  it;  but  it  is 
not  a  parliamentary  committee  in  the  ordinary  sense  since 
it  operates  only  in  consultation  with  the  Government  and 
does  not  report  to  the  chamber.  In  practice,  members  of 
the  committee,  when  not  bound  by  a  pledge  of  secrecy, 
are  free  to  communicate  with  their  friends  in  the  parlia- 
mentary parties;  but  this,  as  is  obvious,  is  a  rather  meagre 
concession  to  complete  parliamentary  supervision.2 

The  model  for  these  legislative  committees  is  the  French 
Commission  on  Foreign  Affairs.  This  commission  may 
summon  before  it  any  persons  whose  vote  may  be  of  a 
nature  to  guide  it  in  its  deliberations  and  may  request  a 
minister  himself  to  appear  and  explain  his  policies.  While 
secret  treaties  in  France  are  not  unknown,  it  is  probably 
correct  to  say  that  this  commission  exercises  a  more  con- 
stant and  effective  supervision  over  the  executive  than 
is  exercised  by  the  parliamentary  body  hi  any  other  coun- 
try.3 

The  new  constitutions  follow  the  model  of  France. 
Certain  classes  of  treaties  are  enumerated  that  require 
legislative  ratification;  inferentially  other  treaties  may  be 
concluded  by  the  executive.  WTar  and  peace  may  be  de- 
clared only  by  the  legislature.  In  most  of  these  constitu- 

H^scar  Pedersen,  "Foreign  Policy  Control  in  Norway,"  Foreign  Affairs, 
December,  1921. 

*Axel  Brusewitz,  "Parliamentary  Control  of  Foreign  Affairs  in  Sweden," 
Foreign  Affairs,  January,  1922. 

3See  Barthelemy,  Democrat  et  politique  itrangSre,  pp.  ISO  ff.  and  322  ff. 
(Paris,  1917.) 


DEMOCRATS  AND  DIPLOMATS 


151 


tions  no  provision  is  made  for  a  commission  of  foreign 
affairs  similar  to  the  French,  although  presumably  such 
commissions  may  be  established  under  the  standing  orders 
of  the  parliaments  without  express  constitutional  author- 
ization. It  is  probable,  also,  that  the  legislative  com- 
mittees which  operate  during  parliamentary1  recesses  will 
have  some  competence  with  regard  to  foreign  affairs.  In 
Germany,  however,  a  commission  is  created  on  the  French 
plan  which  may  sit  whether  the  Reichstag  is  in  session  or 
not.  There  will  thus  be  two  legislative  agencies  empow- 
ered to  supervise  the  executive  when  the  full  parliament 
is  not  meeting.  In  the  Weimar  constituent  assembly, 
serious  objections  were  raised  to  this  proposal  of  a  com- 
mission on  foreign  affairs.  It  was  urged  that  the  com- 
mission would  evidence  distrust  of  the  government,  and 
that,  acting  as  an  organ  of  surveillance,  it  would  embarrass 
the  conduct  of  foreign  relations.  The  principal  answer 
to  these  arguments  was  that  there  had  been  no  unfavorable 
results  in  countries  which  used  the  commission  system.2 
It  is  interesting  to  note  that  even  though  the  new  con- 
stitutions contain  liberal  provisions  for  the  initiative  and 
referendum  they  make  no  attempt  to  bring  foreign  affairs 
within  the  scope  of  direct  government.  Indeed,  the 
Esthonian  constitution — perhaps  the  most  extreme  in 
this  respect — specifically  excludes  foreign  affairs  from  the 
operation  of  the  referendum.  Until  a  recent  Swiss  con- 
stitutional amendment  the  referendum  on  treaties  had 
never  been  incorporated  in  any  constitution  except  the 
French  constitution  of  1793.3  In  April,  1913,  the  proposal 


'See  above,  p.  34. 

*Brunet,  The  New  German  Constitution,  p.  151.  M.  Brunei  suggests  that  the 
principal  function  of  the  commission  may  be  to  serve  as  an  organ  which  will 
"bring  the  influence  of  politically  experienced  personalities  of  the  Reichstag 
to  bear  on  the  professional  agencies  of  the  diplomatic  service." 

'Art.  50  required  declarations  of  war,  treaties  of  peace,  alliance,  and  commerce 
to  be  proposed,  discussed,  and  promulgated  like  laws,  and  for  laws  this  constitu- 
tion provided  an  optional  referendum.  Esmein,  Elements  du  droit  constitution- 
nel,  pp.  356-699  (Paris,  1909,  5th  ed.). 


Legislative 
Committees 


Swiss 

referendum 
on  treaties 


152       NEW  CONSTITUTIONS  OF  EUROPE 


Swiss 

referendum 
on  joining 
the  League 
of  Nations 


was  made  by  the  initiative  to  add  to  Article  89  of  the 
Swiss  constitution  the  following  clause:  "International 
treaties  concluded  for  an  indeterminate  period  or  for  more 
than  fifteen  years  are  likewise  submitted  to  the  people  for 
adoption  or  rejection  if  the  demand  is  made  by  thirty 
thousand  active  citizens  or  by  eight  cantons."  The  cham- 
bers had  recently  accepted  an  unpopular  treaty  and  its 
opponents  suggested  this  expedient  of  a  referendum  to 
control  foreign  policy  in  the  future. 

The  vote  on  the  proposal,  postponed  on  account  of  the 
war,  was  not  held  until  January,  1921.  The  measure 
carried  by  a  large  majority  (388,365  to  158,688),  every 
canton  being  in  favor  of  it  except  Uri  and  Thurgau.1 
There  was  a  referendum  in  Switzerland  on  the  proposition 
of  joining  the  League  of  Nations,  May  16,  1920.  Seventy- 
six  per  cent  of  the  electorate  voted,  a  very  high  percentage, 
415,819  being  in  favor  and  323,225  being  against.  Eleven 
and  one-half  cantons  voted  for,  and  ten  and  one-half 
against,  the  proposal.  A  change  of  ninety-four  popular 
votes  in  Appenzell  Exterior  would  have  tied  the  canton 
vote  and  resulted  in  defeat  of  the  proposal.2  This  con- 
stitutional amendment  came  after  a  long  agitation  for 
direct  control  in  foreign  affairs  and  after  much  discussion 
of  the  present  complicated  situation  with  regard  to  treaty 
ratification  in  Switzerland.3  The  amendment  as  adopted 
would  seem  to  have  all  the  vices  and  none  of  the  merits 
of  a  plebiscite  in  foreign  affairs.  That  is  to  say,  it  is  sub- 
brooks,  "Swiss  Treaty  Initiative,"  American  Political  Science  Review,  August, 
1921. 

*Brooks,  "Swiss  Referendum  on  the  League  of  Nations,"  American  Political 
Science  Review,  August,  1920. 

JThe  problem  is  ably  discussed  by  M.  Edouard  Georg,  Le  controle  du  peuple 
tur  la  politique  exterieure  (Geneva,  1916).  He  gives  a  detailed  and  careful  anal- 
ysis of  the  cantonal  referenda  in  the  rare  cases  in  which  treaties  are  concluded 
between  the  cantons  and  foreign  nations  and  in  cases  of  inter-cantonal  concor- 
dats. There  is  also  an  interesting  discussion  of  the  Landsgemeinden  and  a  full 
analysis  of  questions  arising  when  treaties  involve  changes  in  laws  and  the  plea 
of  urgency  is  made  as  to  decrees  putting  treaties  into  effect  and  thus  avoiding  a 
referendum. 


DEMOCRATS  AND  DIPLOMATS 


153 


ject  to  all  the  objections  that  questions  of  diplomacy  are 
too  difficult,  that  they  require  too  immediate  action,  and 
that  their  bilateral  character  would  cause  too  many 
difficulties  with  other  states  to  allow  them  to  be  subject 
to  popular  vote.  On  the  other  hand,  a  good  many  of  the 
controversies  in  Switzerland  had  concerned  commercial 
treaties  modifying  customs  regulations;  by  this  amend- 
ment commercial  treaties  would  not  be  directly  involved 
since  their  life  is  brief.  The  result  of  the  constitutional 
change  will  probably  be  to  persuade  the  Government  to 
put  a  time  limit  of  less  than  fifteen  years  on  all  its  inter- 
national agreements — a  result  which,  generally  speaking, 
will  no  doubt  be  beneficial.1 

'John  Stuart  Mill,  "Treaty  Obligations,"  Fortnightly  Review.  Vol.  VIII,  p.  715 
(N.  S.,  1870). 

M.  Georg  advocates  a  commission  of  foreign  affairs  for  Switzerland.  He 
cites  a  proposal  to  have  such  a  commission  extra-parliamentary,  Switzerland 
already  having  twenty  such  bodies,  some  with  administrative  and  some  with 
only  consultative  authority.  The  suggestion  was  that  the  commission  be  com- 
posed of  professors  of  international  law,  retired  diplomats  and  economists,  and 
composed  thus  "of  men  whose  career  has  put  them  in  touch  with  the  interna- 
tional interests  of  the  country;  it  could  give  valuable  advice  to  the  Federal  Coun- 
cil and  the  political  department."  Such  a  commission,  however,  would  have 
incomplete  powers,  for  it  could  only  advise,  and  the  author,  therefore,  inclines 
to  a  parliamentary  body.  Like  most  foreign  observers  he  assigns  a  too  impor- 
tant r6le  in  the  formulation  of  policy  to  the  American  Senate  Committee  on 
Foreign  Affairs.  A  parliamentary  committee  in  Switzerland  would  have  two 
important  advantages:  "it  would  permit  deputies  who  were  particularly  com- 
petent in  the  matter  of  foreign  politics  to  express  their  opinions  with  full  knowl- 
edge, and  it  would  establish  a  very  effective  liaison  between  the  chambers 
and  the  executive  authority."  (P.  234.)  M.  Georg,  however,  advocates  the 
commission  as  an  alternative  to  the  referendum,  if  it  is  thought  necessary  to  add 
to  the  numerous  existing  guarantees  another  restriction  on  the  competence  of 
the  Federal  Council  in  foreign  policy.  Le  controle  du  peuplc  rur  la  politiquc 
exttrieure. 


Probable 
results  in 
Switzerland 


The 

American 
concept  of 
a  constitu- 
tion 


CHAPTER  VIII 
INDIVIDUALISM  AND  SOCIALISM 

A  CONSTITUTION  is  a  body  of  rules  or  maxims  defining 
the  scope  of  public  authority  and  determining  the  manner 
of  its  exercise;  but  except  in  this  elementary  respect,  the 
American  and  European  conceptions  of  constitutional  law 
are  not  in  agreement.1  In  the  United  States,  the  federal 
and  state  constitutions  are  written  documents.  It  is  not 
easy  to  change  them.  Amendments  require  greater  for- 
mality, more  mature  deliberation,  and  greater  unanimity 
than  is  the  case  with  ordinary  laws.  They  may  not  be 
enacted  by  Congress  or  the  state  legislatures  alone. 
American  constitutions,  moreover,  are  intended  to  protect 
the  citizen  against  unconstitutional  action  by  the  execu- 
tive or  legislature.  These  branches  of  the  government 
have  only  a  limited  competence  and  in  the  exercise  of  such 
powers  as  they  have,  they  may  not  encroach  on  the  sphere 
of  individual  liberty  that  the  constitution  guarantees  to 
private  persons.  These  limitations  and  rights  are  en- 
forced by  the  courts.  The  American  judiciary  is  the  ar- 
biter between  the  powers  of  the  executive  and  legislature 
on  the  one  hand  and  the  rights  and  immunities  of  private 
persons  on  the  other.  Judicial  supremacy  is  the  keystone 
of  the  American  political  system. 

x"  There  is  between  constitutional  and  ordinary  laws  a  difference  in  degree. 
Constitutional  laws,  by  reason  of  their  importance,  are  superior  to  ordinary 
laws.  They  have  for  their  end  the  organization  of  the  state,  the  regulation  of  the 
political  form  of  the  government;  all  the  organs  of  the  state  are  created  by  them 
and  they  cannot  be  violated,  any  more  by  the  organ  to  which  is  entrusted  the 
exercise  of  the  legislative  function  than  by  the  other  organs.  Laws  cannot  trans- 
gress constitutional  dispositions;  they  are  absolutely  dependent  on  the  funda- 
mental and  superior  law  of  the  constitution."  Jean  Gajac,  De  la  distinction 
des  lots  constitutionettes  et  des  lois  ordinaires,  p.  3  (Bordeaux,  1903).  But  this 
injunction  against  transgression  is  moral  not  legal. 

154 


INDIVIDUALISM  AND  SOCIALISM        155 

These  distinctively  American  elements  of  a  constitution 
are  incorporated  only  to  a  very  limited  extent  in  the  char- 
ters that  have  been  adopted  by  the  new  states  of  Europe. 
This  is  the  case  in  spite  of  the  fact  that  the  "founding 
fathers"  in  Europe  had  the  American  constitution  before 
them.  They  apparently  preferred  the  European  model. 
The  new  constitutions  define  the  scope  of  public  authority 
and  determine  the  manner  of  its  exercise;  but  they  may  be 
changed  by  the  legislature  alone,  and  there  is  for  the  most 
part  no  application  of  the  doctrine  of  judicial  supremacy 
—the  courts  may  not  refuse  to  give  effect  to  laws  on  the 
ground  that  they  are  contrary  to  the  constitution. 

All  of  the  new  constitutions  are,  of  course,  definite 
written  documents.1  Some  lacunce  are  apparent  and 
some  obscurities  will  doubtless  cause  difficulty,  but  the 
attempt  has  been  made  to  meet  all  probable  contingencies. 
Documentary  constitutions  were  inevitable.  In  Europe 
the  Hungarian  common-law  constitution  (so  similar  to 
that  of  England)  stood  alone;  of  the  succession  states  of 
the  Austro-Hungarian  Monarchy  only  Hungary  could 
make  use  of  it  in  order  to  graft  governmental  usages  upon 
an  accustomed  system.  The  other  new  states  had  to 
create  their  political  institutions. 


though  the  republicans  (England,  1647)  "rejected  the  common  law,  and  re- 
garded Magna  Charta  as  'a  beggarly  thing' — Cromwell  himself  only  insisting  on 
'Somewhat  like  a  Magna  Charta' — the  pretensions  of  a  virtually  non-represent- 
ative legislature  had  brought  home  to  them  the  necessity  of  a  check  for  it.  The 
royalists  could  regard  the  old  fundamental  law  as  such  a  check.  That  alterna- 
tive was  not  open  to  the  republicans.  It  was  a  double-edged  weapon.  The 
principles  of  the  common  law  were  as  destructive  of  their  own  theories  as  they 
were  of  parliamentary  sovereignty.  A  check  on  that  sovereignty  must  be  found, 
however,  and  the  idea  of  a  fundamental  law  supplied  it.  If  an  ancient  funda- 
mental law — if  Magna  Charta — could  curb  the  King  or  the  Parliament,  why 
could  not  a  new  document  be  drawn  embodying  their  own  principles  and  free 
from  the  encumbrance  of  the  old  law,  which  should  be  binding  upon  and  unal- 
terable by  the  legislative  power?  Such  a  notion  received  the  assent  of  the  more 
extreme  republicans  because  it  restricted  Parliament;  it  was  favored  by  the 
more  conservative,  as  Cromwell,  because  it  offered  a  protection  against  the  too 
sudden  and  sweeping  changes  which  the  radicals  were  clamoring  for.  And  so 
we  have  the  trial  of  a  new  thing  in  English  history — the  written  constitution." 
C.  H.  Mcllwain,  The  High  Court  of  Parliament  and  It$  Supremacy,  pp.  91-92 
(New  Haven,  1910). 


Not 

adopted 
by  the 
new  states 


Written 
constitu- 
tions were 
inevitable 


Advantage 
of  written 
constitu- 
tions 


Conditions 
necessary 
for  flexible 
constitu- 
tions 


156       NEW  CONSTITUTIONS  OF  EUROPE 

For  peoples  unused  to  self-government  a  documentary 
constitution  has  the  advantage  of  being  more  workable 
than  a  system  that  makes  custom  and  political  morality 
more  important  than  rule.  Moreover,  a  documentary 
constitution  "appears  to  the  people  as  the  immediate  out- 
come of  their  power,  the  visible  image  of  their  sovereignty. 
It  is  commended  by  a  simplicity  which  contrasts  favorably 
with  the  obscure  technicalities  of  an  old  common  law 
constitution."  The  taste  of  the  multitude  is  for  "ideas 
level  with  their  comprehension,  sentiments  which  need  no 
subtlety  to  be  appreciated,  propositions  which  can  be 
expressed  in  unmistakable  positives  and  negatives."1 
These  considerations  have  not  been  without  importance 
in  the  new  states  of  Europe. 

Flexible  constitutions,  Lord  Bryce  pointed  out,  have 
an  affinity  for  an  aristocratic  form  of  government;  "there 
is  a  sort  of  natural  attraction  between  an  aristocracy  and 
an  undefined  and  elastic  form  of  government."  It  needs 
knowledge  and  skill  to  work  a  flexible  constitution  suc- 
cessfully; one  of  three  conditions  is  necessary: 

Either  (1)  the  supremacy  must  remain  in  the  hands  of  a  polit- 
ically educated  and  politically  upright  minority,  or  (2)  the  bulk 
of  the  people  must  be  continuously  and  not  fitfully  interested  in 
and  familiar  with  politics,  or  (3)  the  bulk  of  the  people,  though 
legally  supreme,  must  remain  content,  while  prescribing  certain 
general  principles,  to  let  the  trained  minority  manage  the  details 
of  the  business  of  governing.  Of  these  conditions  the  first  has 
disappeared  from  nearly  all  civilized  countries.  The  second 
has  always  been  rare,  and  in  large  industrial  countries  is  at  pres- 
ent unattainable.  The  best  chance  of  success  is  therefore  to 
be  found  in  the  presence  of  the  third;  but  it  needs  to  be  accom- 

JBryce,  "Flexible  and  Rigid  Constitutions,"  Studies  in  History  and  Jurispru- 
dence, p.  200  (New  York,  1901).  Lord  Bryce  said  that  "rigid"  constitutions 
are  those  which  could  not  be  changed  by  the  ordinary  legislative  authority, 
while  "flexible"  constitutions  are  those  which  are  always  undergoing  some 
change,  however  slight,  in  the  course  of  ordinary  legislation.  The  essay  is 
highly  suggestive  but  the  distinction  is  not  clearly  marked.  France's  constitu- 
tion, for  example,  is  certainly  flexible  if  compared  with  the  American,  even 
though  it  may  not  be  amended  by  the  ordinary  legislative  processes,  and  legisla- 
tion (like  the  electoral  law  of  1919)  may  be  passed  which,  though  not  part  of  the 
constitution,  is  really  a  fundamental  change  in  the  governmental  machinery. 


INDIVIDUALISM  AND  SOCIALISM        157 

panied  by  a  tone  and  taste  and  sense  of  public  honor  among  the 
people  which  will  recoil  from  the  mere  demagogue.1 

None  of  these  conditions  is  to  be  found  in  the  new  states 
of  Europe;  and  while  their  constitutions  are  not  flexible 
in  the  sense  of  Lord  Bryce's  classification,  they  are  not 
sufficiently  above  the  plane  of  ordinary  legislation  to 
avoid  the  dangers  that  a  flexible  constitution  invites.2 
They  are  sufficiently  elastic  to  enable  revolutions  to  be 
met  half  way,  although  the  danger  is  that  this  elasticity, 
by  the  very  facility  for  change  that  it  permits,  may  lead 
perhaps  to  a  hasty  misuse  of  power. 

Furthermore,  it  is  only  in  the  course  of  time,  if  at  all, 
that  these  new  documents  will  come  to  possess  an  element 
of  sacrosanctness.  "A  constitution  which  has  come  down 
in  the  form  of  a  mass  of  laws,  precedents,  and  customs  is 
not  only  more  mysterious,  and  therefore  more  august,  to 
the  minds  of  the  ordinary  citizens  than  one  they  can  read 
in  a  document,  but  is  not  felt  by  them  to  lie  at  their  mercy 
and  to  live  only  by  their  pleasure.  A  constitution  em- 
bodied in  a  document  which  they  have  seen  drafted,  and 
have  enacted  by  their  votes,  has  no  element  of  antiquity  or 
mystery.  It  issues  from  the  sovereignty  of  the  people,  it 
reminds  them  of  their  sovereignty,  it  suggests  to  them 
nothing  more  exalted.  Perhaps  it  has  been  the  work  of 
one  party  in  the  state;  and  if  that  party  becomes  discred- 
ited, it  may  share  the  discredit.  .  .  .  The  fact  that  an 
old  constitution  represents  a  long  course  of  progressive 
development,  or,  to  use  a  somewhat  vulgarized  term,  of 

'Bryce  op.  cit.,  pp.  160-161. 

The  Czechoslovak  constitution  may  be  amended  by  the  legislative  body 
against  the  wishes  of  the  upper  chamber,  a  referendum  (permissible  in  the  case 
of  ordinary  laws)  being  specifically  forbidden.  Nevertheless,  one  writer  says: 

"The  National  Assembly,  having  the  choice  between  a  rigid  and  a  flexible 
system  of  constitution,  adopted  the  first  because  of  the  very  bad  experience 
under  the  Hapsburg  rule,  when  the  constitution  was  often  and  arbitrarily 
changed,  and  so  had  no  opportunity  to  become  established  in  the  respect  of  the 
people  "  Dedek,  "The  Constitution  of  Czechoslovakia,"  Journal  of  Compara- 
tive Legislation  and  International  Law,  Third  Series,  Vol.  III.  p.  115  (January, 
1921). 


Not  found 
in  the 
new  states 


Advantages 
of  "cus- 
tomary" 
constitu- 
tions 


158       NEW  CONSTITUTIONS  OF  EUROPE 


Bills  of 
rights 


Lack  of 
judicial 
supremacy 


evolution,  gives  it  some  claim  on  the  respect  of  imaginative 
or  philosophical  minds.  These  sources  of  moral  strength 
have  been  found  sufficient  in  many  countries  to  secure 
an  enduring  life  for  political  institutions  which  the  people, 
or  a  legislative  body,  had  it  in  their  power  to  change,  p,nd 
which,  in  some  instances,  ought  to  have  been  replaced  by 
other  institutions  more  suited  to  their  altered  environ- 
ment."1 

All  of  the  new  constitutions  have  elaborate  bills  of 
rights.  This  is  perhaps  the  principal  feature  drawn  from 
the  American  constitutional  system.  But  an  inspection 
of  the  clauses  will  show  that  guarantees  given  by  one  hand 
are  often  taken  away  by  the  other.  Freedom  of  the  press 
shall  be  assured — unless  limited  by  law;  private  property 
shall  not  be  taken  for  public  use  without  the  payment  of 
compensation — unless  otherwise  determined  by  law.  The 
guarantees  are  hortatory  rather  than  mandatory;  they 
safeguard  the  citizen  against  arbitrary  executive  action, 
but  for  the  most  part  the  legislative  power  is  apparently 
not  limited  by  the  bills  of  rights.  Moreover,  even  if  it 
were  limited,  the  legislature  itself  would  be  judge  of  the 
scope  of  the  limitations.  For  the  American  doctrine  of 
judicial  supremacy  found  little  favor.  An  attenuated 
bicameral  theory,  with  the  upper  chambers  being  given 
only  suspensory  vetoes,  is  not  particularly  hospitable  to 
the  creation  of  what  is  in  some  respects  a  third  legislative 
chamber — a  court  with  power  to  declare  statutes  uncon- 
stitutional. The  popular  representative  body  is  not  over- 
borne by  a  revisory  chamber  or  by  the  judiciary.  Execu- 
tive orders  do  have  to  run  the  judicial  gauntlet  and  "the 
rule  of  law"  is  thus  partly  assured;  but  in  the  case  of 
legislative  acts  the  courts  are  limited  to  declaring  whether 
they  have  been  properly  passed  and  promulgated.  Some 
of  the  clauses  of  the  constitutions  dealing  with  this  mat- 
ter are  vague,  but  it  would  seem  that  only  the  Czecho- 

'Bryce,  op.  cit.,  p.  143. 


INDIVIDUALISM  AND  SOCIALISM        159 

slovak1  and  Austrian  constitutions  provide  for  any  con- 
siderable measure  of  judicial  review.2 

The  new  constitutions  show  at  a  glance  that  they  permit 
—indeed  invite — more  extensive  measures  of  socialization 
than  have  been  hitherto  resorted  to  by  any  constitu- 
tional government — agrarian  reform,  land  nationaliza- 
tion, state-managed  coal  mines,  bread  subsidies,  unem- 
ployment doles.  Even  though  they  have  decided  against 
the  communist  philosophy  and  organization  of  Russia,  the 
new  states  provide,  almost  as  a  matter  of  course,  for 
action  which  in  the  United  States  would  be  denounced  as 
"Bolshevistic."  To  describe  the  various  experiments  in 
legislation  and  administration  would  take  us  too  far  afield, 
but  one  general  consideration  deserves  mention. 

The  political  philosophy  of  nationalization  has  many 
severe  and  acute  critics.  Little  attention  has  been  paid, 
however,  to  the  fact  that  the  experiences  of  the  war  and  the 
provisions  of  the  treaty  settlements  have  greatly  encour- 
aged socialistic  enterprises.  The  individualist  may  ar- 
gue that  nationalization  is  the  worst  possible  system  from 
the  point  of  view  of  efficiency;  he  may  say,  with  much 
truth,  that  the  methods  that  were  used  to  win  the  war 

'A  commentator  on  the  Czechoslovak  constitution  has  pointed  out  "that  the 
charter  of  the  Constitution  is  placed  in  its  entirety  under  the  special  and  effective 
protection  of  a  Constitutional  Court.  It  is  intended  that  the  Charter  of  the 
Constitution  be  the  foundation  stone  of  the  whole  life  of  the  State,  the  fountain 
of  the  rights  of  all  citizens.  An  ordinary  law  may  not  conflict  with  the  Consti- 
tution without  becoming  null  and  void.  The  judgment  of  the  Constitutional 
Court  declaring  a  law  invalid  causes  it  or  its  defective  part  to  lose  its  binding 
force  for  the  future.  This  institution  likewise  serves  as  a  protection  of  the  rights 
of  minorities  whether  racial  or  religious."  Hoetzl,  The  Constitution  of  the  Czecho- 
slovak Republic,  p.  15  (Prague,  1920).  Article  102  of  the  constitution,  however, 
declares  that  "in  the  case  of  a  law  they  [the  judges]  can  only  enquire  as  to 
whether  it  was  properly  promulgated."  Article  1  declares  that  "enactments 
which  are  in  conflict  with  the  Constitutional  Charter  or  with  laws  which  may 
supplement  or  amend  it  are  invalid."  The  Act  of  March  9,  1920,  establishing 
the  Constitutional  Court  declares  that  "laws  promulgated  either  by  the  National 
Assembly  or  by  the  Diet  of  Russinia,  which  are  in  conflict  with  the  Charter  of 
the  Constitution  or  with  laws  amending  or  supplementing  it,  are  invalid." 

*See  the  complicated  provisions  of  Arts.  89,  138,  139,  140,  144,  of  the  Austrian 
constitution  as  to  judicial  review.  See  also  Art.  13  of  the  German  constitution. 


New  con- 
stitutions 
invite 
socializa- 
tion 


Effects  of 
the  war,  on 
nationaliza- 
tion 


Effect  of 
the  war 
on  private 
property 


In  England 


In  the 
new  states 


160       NEW  CONSTITUTIONS  OF  EUROPE 

would  never  be  tolerated  in  times  of  peace.  The  fact 
remains,  nevertheless,  that  when  the  need  of  the  state  was 
greatest  it  resorted  to  these  much-decried  methods  of 
control;  England,  France,  and  the  United  States  became 
socialist  countries  by  popular  consent.  They  will  never 
be  able  to  restore  the  individualistic  economy  that  pre- 
vailed before  the  war;  and  no  doubt  the  tendency  will  be 
to  resort  to  similar  emergency  expedients  when  the  menace 
is  not  a  foreign  enemy  but  a  wasteful  economic  system. 

From  a  moral  standpoint,  moreover,  the  war  pre- 
sented the  institution  of  private  property  in  a  new  light. 
Conscription  had  more  than  military  importance.  It 
may  be  argued  that  if  the  life  of  the  citizen  belongs  to  the 
state  in  its  time  of  need,  then  surely  his  property  does  also. 
As  an  English  writer  has  said:  "The  communist  state 
which  says  to  the  citizen,  'You  must  work  and  surrender 
your  private  property  or  you  will  have  no  vote,'  asks, 
after  all,  somewhat  less  that  the  bourgeois  military  state 
which  says  to  the  conscript,  'Fight  and  give  your  person 
to  the  state  or  we  will  kill  you.'  For  great  masses  of  the 
British  working  classes  conscription  answered  the  ethical 
problem  involved  in  the  confiscation  of  capital.  The 
Eighth  Commandment  no  longer  stands  in  the  way."1 

If  this  be  true  of  England,  the  Eighth  Commandment 
stands  even  less  in  the  way  of  the  peoples  of  the  succession 
states;  for  their  need  is  greater,  their  sacrifices  have  been 
more  material,  and  the  prospects  of  a  good  life  on  the  basis 
of  the  pre-war  individualist  economy  are  almost  entirely 
illusory.  They  are  too  sanguine  that  economic  miracles 
like  those  performed  during  the  war  are  possible  in  times 
of  peace;  but  their  philosophy  was  derived,  in  part  at  least, 
from  the  examples  of  states  which  now  incline  toward  the 
other  extreme  in  the  relation  of  politics  to  economics  and 
in  which  the  continuance  of  the  war-time  methods  of  con- 
trol is  bitterly  denounced. 

'Norman  Angell,  The  Fruits  of  Victory,  p.  73  (London,  1921). 


INDIVIDUALISM  AND  SOCIALISM        161 

If,  furthermore,  it  has  seemed  justifiable  and  proper 
for  states  to  pay  their  internal  war  debts  in  irredeemable 
paper  or  by  the  making  of  huge  drafts  upon  large  private 
incomes,  why,  it  is  asked,  may  not  a  state  find  money  in 
the  same  way  for  its  social  experiments?  Protection  of  a 
citizenry  against  poverty  may  be  as  high  a  purpose  as 
protection  against  a  foreign  enemy.  Before  the  war  the 
future  legal  status  of  private  property  was  a  matter  for 
interesting  theoretical  speculation;  it  is  now  a  subject  of 
practical  politics;  it  is  perhaps  the  chief  problem  of  Euro- 
pean statecraft.  This  fact,  which  can  be  considered  as  al- 
most entirely  independent  of  the  challenge  of  the  Russian 
Revolution,  is  nowhere  revealed  more  fully  than  in  the  fun- 
damental laws  of  the  political  children  of  the  Peace  treaties. 

Another  fact  to  which  inadequate  attention  has  been 
paid  is  that  the  Peace  treaties  themselves  prevent  a  re- 
turn to  the  pre-war  economy  and  cause  a  continuance  of 
state  control.  They  make  a  large  measure  of  national 
tutelage  compulsory  in  the  enemy  states;  and  if  the  terms 
of  the  treaties  are  carried  out,  this  will  be  true  for  a  gen- 
eration. The  treaties  provide  for  the  wholesale  confisca- 
tion of  the  private  property  of  enemy  nationals  in  allied 
countries  and  in  territories  taken  from  Germany,1  and  in 
case  of  default  by  Germany  on  her  reparation  payments, 
balances  due  Germany  on  private  accounts  need  not  be  paid 
over.  The  barrier  that  this  provision  would  raise  to  trade 
was  so  obvious  that  the  British  Government  sought  to 


'As  conservative  an  organ  as  the  Quarterly  Review  deals  with  this  clause  in 
severe  fashion:  "We  are  justified  in  regarding  this  policy  with  the  utmost  appre- 
hension, not  only  because  of  its  injustice,  but  also  because  it  is  likely  to  form 
precedents  of  a  most  mischievous  character  in  the  future.  If,  it  will  be  said, 
the  Allied  Governments  ended  their  great  war  for  justice  and  right  by  confiscat- 
ing private  property  and  ruining  those  unfortunate  individuals  who  happened 
to  have  investments  outside  their  own  country,  how  can  private  wealth  at  home 
complain  if  a  Labor  Government  proposes  to  confiscate  private  property  in  any 
business  which  it  thinks  suitable  for  'nationalization'?  Under  another  provi- 
sion the  Reparation  Commission  is  actually  allowed  to  demand  the  surrender 
of  German  properties  and  German  enterprises  in  neutral  countries.  This  will 
be  found  in  Article  235,  which  introduces  a  quite  novel  principle  in  the  collection 
of  indemnities."  "Economics  of  the  Peace,"  Quarterly  Renew,  April,  1920. 


Future  of 

private 

property 


Peace 

treaties 
encourage 
national 
control  of 
industry 


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164       NEW  CONSTITUTIONS  OF  EUROPE 

The  new  states  of  Europe  are  putting  their  trust  in 
parliamentary  government,  geographical  representation, 
and  decision  by  majorities.  One  may  wonder  how  nearly 
Gladstone  was  right  when,  with  fine  disregard  of  the 
examples  of  his  own  political  career  and  the  tenets  of  his 
philosophy,  he  said:  "It  is  not  by  the  state  that  man  can 
be  regenerated  and  the  terrible  woes  of  this  darkened 
world  effectually  dealt  with." 


PART  II 
THE  NEW  CONSTITUTIONS  OF  EUROPE 


CHAPTER  IX 
GERMANY 

1.    HISTORICAL  NOTE 

FROM  1815  to  1866  the  numerous  German  states,  in- 
cluding Austria,  were  held  together  in  an  extremely  loose 
confederation — a  creation  of  the  Congress  of  Vienna.  In 
the  latter  year  an  open  rupture  between  Prussia  and 
Austria,  the  two  leading  states  of  the  Union,  led  to  a  dis- 
solution of  the  confederation.  Civil  war  eventuated  in 
a  quick  victory  for  the  Prussian  arms.  The  so-called 
August  Treaty  that  followed  bound  Prussia  and  the 
North  German  States  in  an  offensive  and  defensive  alliance 
and  provided  for  the  establishment  within  one  year  of 
a  federal  union  along  lines  proposed  by  Bismarck.  By 
October,  1866,  twenty-two  states  had  signed  this  treaty, 
including  a  few  small  states  that  had  fought  on  the  side 
of  Austria. 

In  December,  1866,  diplomatic  representatives  appointed 
by  the  kings  and  princes  of  the  several  states  met  in  Ber- 
lin; and  early  in  February,  1867,  this  assembly  agreed 
upon  a  proposed  constitution  for  the  Union.  Later  in  the 
same  month  an  assembly  of  delegates,  elected  by  manhood 
suffrage  and  secret  ballot,  ratified,  after  making  some 
amendments,  the  constitution  thus  prepared  for  their 
consideration.1  Thereafter  the  constitution  was  sub- 
Concerning  the  principle  of  manhood  suffrage  by  which  delegates  to  this 
ratifying  convention  were  elected,  Bismarck,  the  originator  of  the  scheme,  had 
this  to  say  in  later  years : 

"Looking  to  the  necessity,  in  a  fight  against  an  overwhelming  foreign  power, 
of  being  able,  in  extreme  need,  to  use  even  revolutionary  means,  I  had  had  no 
hesitation  whatever  in  throwing  into  the  frying  pan,  by  means  of  the  circular 
dispatch  of  June  10,  1866  [which  dispatch  contained  the  first  draft  of  the  pro- 
posed constitution],  the  most  powerful  ingredient  known  at  that  time  to  liberty- 

167 


Formation 
of  the 
North 
German 
Confedera- 
tion 


Its  con- 
stitution 
of  1867 


168       NEW  CONSTITUTIONS  OF  EUROPE 

mitted  to  the  governments  of  the  several  states  and  rati- 
fied by  them  in  accordance  with  the  procedure  required 
for  amending  the  constitutions  of  their  respective  states. 
Concerning  the  role  that  was  actually  performed  by  this 
"democratic"  convention  the  most  distinguished  commen- 
tator on  the  constitutional  law  of  Germany  has  said : 

R61e  of  the  The  Parliament  (or  popular  convention)  was  not  one  of  the 

"popular"  "parties"  to  the  constitution,  but  only  a  means  of  coming  to 
convention  some  sort  of  agreement  over  the  constitution.  It  had  no  legal 
powers,  but  simply  a  political  duty.  It  was  meant  to  balance 
the  divergent  views  and  particularistic  tendencies  of  the  several 
Governments,  and  its  consent  should  serve  as  a  guarantee  that 
the  constitution,  as  agreed  upon,  should  correspond  to  the 
political  views  and  desires  of  the  people,  to  public  opinion. 
The  "agreement"  between  the  Governments  and  the  Parlia- 
ment was  a  harmonizing  of  the  views  as  to  what  sort  of  a  con- 
stitution should  be  given  to  the  Bund,  and  the  result  of  that 
"agreement"  was  not  to  impart  validity  to  a  constitution,  but 
to  produce  the  draft  of  a  constitution.1 

There  was,  indeed,  never  the  slightest  pretense  in  Ger- 
man political  philosophy  that  the  North  German  constitu- 
tion of  1867,  which  to  all  intents  and  purposes  became 
the  constitution  of  the  Empire,  actually  emanated  from 
the  people  who  were  to  be  governed  under  it.  Despite  the 
fact  that  in  turbulent  times  it  was  given  intermediary 
ratification  by  a  "popular"  assembly,  it  was  drafted  by 
the  autocracy  of  Prussia  and  was  given  its  ultimate  sanc- 
tion by  the  autocracies  of  the  several  uniting  states.  In 
the  history  of  American  institutions  no  assemblage  stands 
out  so  conspicuously  as  the  convention  that  drafted  the 
American  constitution  of  1787;  in  the  history  of  German 
institutions  no  assembly  has  been  given  slighter  considera- 

mongcrs,  namely  universal  suffrage,  so  as  to  frighten  off  foreign  monarchies  from 
trying  to  stick  a  finger  in  our  national  omelette.  I  never  doubted  that  the 
German  people  would  be  strong  and  clever  enough  to  free  themselves  from  the 
existing  suffrage  as  soon  as  they  realized  that  it  was  a  harmful  institution.  If 
it  cannot,  then  my  saying  that  Germany  can  ride  when  once  it  has  got  into  the 
saddle  was  erroneous."  Bismarck,  The  Man  and  Statesman  [Autobiography] 
Vol.  II,  p.  65  (New  York,  1899). 

'Laband,  Das  Staatsrecht  des  Deutschen  Reiches,  Vol.  I,  p.  23  (Hamburg,  1883). 


GERMANY 


169 


tion  than  that  which  in  March-April,  1867,  interposed  for 
a  brief  moment  between  the  autocracy  that  drafted  and  the 
autocracies  that  gave  validity  to  the  fundamental  law  of 
the  inchoate  Empire. 

The  constitution  of  the  North  German  Confederation 
became  effective  on  July  1,  1867.  It  made  prophetic 
provision  for  the  ultimate  inclusion  of  the  South  German 
States  in  the  Union.  The  swollen  prestige  of  Prussia  in 
consequence  of  her  victory  over  France  in  1870  brought 
these  states  to  terms.  In  November  of  that  year  Bavaria, 
Wiirttemberg,  Baden,  and  Hesse  entered  into  treaties  with 
the  Confederation  which  resulted  in  their  incorporation 
into  the  Union  and  in  the  substitution  of  Empire  for  Con- 
federation (Bund).  Strictly  speaking,  the  German  Em- 
pire came  into  being  on  January  1,  1871;  but  the  constitu- 
tion of  the  Empire  was  a  codification  of  the  constitution 
of  the  North  German  Confederation  of  1867  and  of  the 
treaties  of  November,  1870,  between  the  Confederation 
and  the  several  South  German  States.  On  April  16,  1871, 
this  codified  constitution  was  published  as  an  "imperial 
law."  Under  this  instrument,  amended  from  time  to 
time  in  certain  unimportant  respects,  Germany  was  gov- 
erned until  the  end  of  the  World  War  in  1918. 

In  1914  it  was  "military,  not  political,  opinion  in  Ger- 
many" which  "decided  that  war  was,  if  not  desirable,  at 
least  inevitable."1  It  was  the  military  strategist  who 
usurped  the  function  of  the  diplomatist-politician.  And 
during  the  course  of  the  war  nothing  was  more  evident  in 
Germany  than  the  steadily  increasing  ascendancy  of  the 
military  authorities  over  the  political  in  every  field  of 
governmental  activity.  Quite  apart,  therefore,  from  the 
pressure  of  external  propaganda  against  the  autocratic 
form  of  the  imperial  government,  the  military  collapse  of 
Germany  was  in  a  very  real  sense  also  a  political  and  in- 
stitutional collapse. 

Smith,  Militarism  and  Statecraft,  p.  115  (New  York,  1918). 


Inclusion 
of  South 
German 
States, 
1870 


Constitution 
of  1871 


Military 

defeat 

meant 

political 

collapse 

in  1918 


170       NEW  CONSTITUTIONS  OF  EUROPE 


Revolution 
of 

November, 
1918 


Workers 
and 

Soldiers 
Councils 


The  Empire  came  to  an  end  with  a  bloodless  revolution.1 
The  body  politic  appeared  to  be  more  stunned  than  torn. 
On  November  9,  1918,  the  Kaiser's  abdication  was  an- 
nounced; and  Scheidemann,  acting  for  the  Social  Demo- 
cratic party,  proclaimed  Germany  a  Republic.  Prince 
Max  von  Baden  resigned  as  Chancellor  and  himself  named 
the  Social  Democrat,  Friedrich  Ebert,  to  succeed  him. 
The  Social  Democrats  and  the  Independent  Socialists  (the 
latter  a  radical  offshoot  of  the  Social  Democrats,  dating 
from  1916)  agreed  through  their  leaders  to  appoint  a  pro- 
visional "Cabinet"  composed  of  three  members  of  each 
party.2  It  was  this  government,  wholly  irregular  in  origin, 
that  signed  the  Armistice  on  November  11,  1918.  The 
monarchists  were  as  quiescent  as  were  the  proletarians. 
Even  with  a  huge  army  returning  home  under  shattered 
discipline  there  was  practically  no  violence.  Nor  was 
there  any  break  in  public  services;  the  vast  army  of  civil 
servants  continued  to  function  at  the  orders  of  the  new 
government. 

But  in  spite  of  the  comparative  "regularity"  of  this 
irregular  provisional  government,  potential  political  power 
in  Germany  had  none  the  less  passed  into  other  hands. 
Almost  over  night  Workers  and  Soldiers  Councils  had 
sprung  into  being  all  over  the  country.3  The  coalition 
Socialist  Government  had  been  formed  only  with  the  con- 
sent of  the  "Executive  Council"  of  the  Berlin  District. 
Moreover,  the  Independent  Socialists  had  entered  into 
this  coalition  upon  the  express  condition  that  the  Govern- 
ment would  recognize  the  authority  of  the  Workers  and 

JFor  a  more  detailed  account  of  the  events  of  the  revolution,  see  Temperley, 
Ed.,  A  History  of  the  Peace  Conference  of  Paris,  Vol.  I,  Ch.  II;  Vol.  II,  Ch.  VII 
(London,  1920). 

JEbert,  Scheidemann,  and  Lansberg  were  the  Social  Democrats  and  Haase, 
Dittman,  and  Earth  were  the  Independent  Socialists. 

3The  way  had  been  prepared  by  the  National  Patriotic  Service  Law,  intro- 
duced in  December,  1916,  which  as  a  concession  to  labor  provided  for  the  estab- 
lishment of  Committees  of  Workers  in  all  sizeable  factories.  See  Temperley, 
Ed.,  op.  cit.,  Vol.  II,  p.  455. 


GERMANY 


171 


Soldiers  Councils.  Representatives  of  these  Councils 
supervised  all  departmental  activities  of  the  Government 
and  countersigned  official  documents. 

Faithful  to  the  Erfurt  Programme  of  1892,  the  Social 
Democrats  declared  themselves  in  favor  of  summoning  a 
constituent  assembly  vested  with  constitution-making 
power.  The  Independents  were  for  a  time  hesitant  about 
this  proposal.  They  appeared  to  be  in  favor  of  a  soviet 
system;  but  at  the  same  time  they  appeared  to  be  not 
wholly  opposed  to  a  parliamentary  system.  The  Com- 
munists, led  by  Karl  Liebknecht  and  Rosa  Luxemburg, 
were  in  unqualified  opposition.  Strangely  enough,  more- 
over, they  found  in  this  opposition  a  measure  of  support 
from  the  extreme  Monarchists.  Many  of  these  appeared 
to  reject  the  prospect  of  a  parliamentary  democracy  that 
would  sign  a  treaty  imposed  by  the  victors,  and  to  wel- 
come, as  more  promising,  a  Bolshevistic  regime,  with  its 
probably  infectious  consequences  in  the  countries  of  the 
Allies  and  its  incapacity  to  comply  with  many  probable 
terms  of  the  treaty. 

On  November  19  the  Executive  Committee  of  the 
Workers  and  Soldiers  Councils,  unable  to  agree  on  the 
question  of  a  constituent  assembly,  issued  a  call  for  a 
Congress  of  all  such  councils  in  Germany.  In  the  month 
that  followed  there  was  feverish  political  agitation.  On 
this  question  of  a  constituent  assembly  hung  the  issue  of 
soviet  or  parliamentary  government.  The  Congress  as- 
sembled on  December  16  and  two  days  later  voted  over- 
whelmingly in  favor  of  calling  a  constituent  assembly. 
The  Independent  Socialists  withdrew  in  protest;  and 
shortly  thereafter  the  three  Independents  resigned  from 
the  "Cabinet."  They  were  replaced  by  three  Social 
Democrats. 

The  Congress  of  Councils  also  elected  a  Central  Council 
and  vested  it  with  power  to  ratify  appointments  to  Ger- 
man and  Prussian  Cabinet  posts,  as  well  as  with  power  to 


Opposition 
to  a 

constituent 
assembly 


Congress  of 

Workers 

Councils 


The 

Central 

Council 


Failure  of 
Spartacists 


The 

constituent 
assembly 
of  1919 


veto  provisional  laws.  In  a  sense  it  may  be  said  that  the 
Congress  of  the  Councils  was  the  potential  legislature  and 
the  Central  Council  was  the  potential  executive  of  the 
revolution.  But  political  action  was  in  form  taken  by 
the  "Cabinet"  or  so-called  "People's  Commissioners." 

In  December,  1918,  and  January,  1919,  the  revolution 
burst  into  violence.  The  Communists  or  Spartacists, 
considerably  augmented  by  Independent  Socialists,  sought 
by  force  to  capture  the  Government  and  to  prevent  the 
election  of  a  constituent  assembly.  The  Cabinet,  duly 
authorized  by  the  Central  Council,  interposed  armed  re- 
sistance, not  only  in  Berlin,  but  also  in  other  cities  where 
the  conditions  of  the  capital  were  being  reproduced. 
With  the  assassination  of  Liebknecht  and  Rosa  Luxem- 
burg on  January  15  the  proletarian  effort  collapsed  in 
debacle.  It  was  a  curious  though  not  inexplicable  aspect 
of  the  German  revolution  that  such  violence  as  it  pro- 
duced was  not  directed  against  the  late  rulers — the  aristo- 
crats, monarchists,  militarists,  and  junkers.  These  were 
bystanders,  mere  onlookers,  at  the  short-lived  drama  of 
armed  conflict  between  the  extreme  radicals  and  the  long 
contemned  bourgeoisie,  who  now  for  the  first  time  held 
the  reins  of  power  in  trembling  and  untried  hands. 

The  date  of  the  election  of  the  constituent  assembly 
was  January  19,  1919.  The  conditions  of  election  were 
fixed  by  a  "Cabinet"  decree  of  November  30,  1918.  The 
suffrage  was  made  "universal,  equal,  direct,  and  secret." 
It  was  extended  to  women  as  well  as  to  men,  and  twenty 
years  was  fixed  as  the  age  requirement.  Provision  was 
made  for  a  registration  of  voters;  and  a  system  of  propor- 
tional representation  was  established  under  which  from 
six  to  sixteen  delegates  were  to  be  elected  in  each  of  thirty- 
eight  districts.1  Originally  the  decree  called  for  four  hun- 
dred and  thirty-three  delegates,  but  subsequent  events 
reduced  the  number  to  four  hundred  and  twenty-one.  In 

'See  above,  pp.  97  S. 


GERMANY 


173 


the  campaign  most  of  the  old  political  parties  were  re- 
christened  with  names  appropriate  to  the  changed  order. 
The  voters  went  to  the  polls  in  enormous  numbers;  more 
than  thirty  million  votes  were  cast.  The  results  of  the 
election  showed  clearly  that  the  advocates  of  parliamen- 
tary government  had  completely  triumphed  over  the  ex- 
tremists of  the  Left.1  The  assembly  could  not  boast  a 
large  leaven  of  political  experience;  for  of  the  delegates 
elected  only  forty-five  had  served  in  the  dissolved  Reichs- 
tag. Thirty-six  of  the  delegates  were  women. 

"By  this  election,"  writes  a  German  commentator, 
"the  German  people  seized  the  sovereignty  that  had  hith- 
erto been  recognized  as  belonging  to  those  who  possessed 
political  power,  and  for  the  first  time  actually  exercised 
the  power  of  the  state.  All  the  declarations  of  the  former 
dictatorial  masters  to  the  effect  that  the  new  Germany 
should  be  erected  upon  a  democratic  foundation  and  that 
the  political  power  of  the  Empire  should  also  rest  with  the 
German  people,  were  meaningless  so  long  as  the  people 
did  not  by  their  own  action  make  use  of  their  right.  The 
actual  management  of  the  organs  of  state  is  what  primar- 
ily proves  that  the  people  have  the  will  to  exercise  the 
power  that  is  proposed  to  be  vested  in  them  and  demon- 
strates the  existence  of  an  established  form  of  state."2 

The  assembly  came  together  on  February  6,  1919. 
"Professedly  to  steep  it  in  the  sedative  atmosphere  of  the 
old  pre-Prussian  'kultur'  of  the  philosophers  and  poets 
and  practically  to  withdraw  it  from  the  too-stimulating 
atmosphere  of  Berlin,"3  Weimar  was  chosen  as  the  place 

1The  election  results  were  as  follows:  Social  Democrats,  163;  Christian  Peoples 
party  (old  Center  or  Catholic  Federal),  92;  German  Democratic  party  (old 
Progressives  and  Radical  Liberals),  75;  German  National  Peoples  party 
(old  Conservatives),  42;  Independent  Socialists,  22;  German  Peoples  party  (old 
National  Liberals),  21;  small  peasant  parties,  6.  Total,  421.  There  are  some 
slight  variations  in  these  figures  in  different  reports  of  the  election. 

2F.  Giese,  Die  Verfassung  des  Deutschen  Reiches,  torn  11.  August  1919,  3d.  ed. 
pp.  19,  20  (Berlin,  1921). 

'Young,  The  New  Germany,  pp.  323-34  (New  York,  1C20). 


Significance 
of  election 
of  assembly 


A  "consti- 
tutional" 
provisional 
government 


Action  of 
Workers 

Councils 


of  meeting.  Four  days  after  the  opening  of  the  assembly 
an  act  was  passed  which  established  a  provisional  form  of 
government.  In  many  respects  this  act  foreshadowed  the 
provisions  of  the  permanent  constitution.  Its  details 
need  not  be  elaborated.  Suffice  it  to  say  that  the  assembly 
itself  was  to  exercise  provisional  legislative  power.  Pro- 
vision was  made  for  a  President  and  for  a  Chancellor  at  the 
head  of  a  Ministry  responsible  to  the  assembly.  But  the 
power  of  the  Ministry  to  initiate  legislative  proposals 
was  made  subject  to  the  advice  of  a  Committee  of  the 
States.  On  February  12  a  coalition  was  affected  in  the 
assembly  between  the  Social  Democrats,  the  Christian 
Peoples  party  (the  Catholic  Center),  and  the  Democratic 
party  (the  Progressives  and  Left  Wing  Liberals).  Ebert 
was  elected  provisional  President  and  Scheidemann  became 
Chancellor.  Under  this  system  a  legislative  program 
of  considerable  importance  was  put  through  while  the 
permanent  constitution  was  in  process  of  being  completed. 

This  "constitutional"  provisional  government  came 
into  existence  almost  immediately  after  the  assembly  met; 
but  the  organization  of  Workers  Councils  did  not  in  conse- 
quence cease  to  exist.  In  this  situation,  therefore,  there 
was  large  opportunity  for  embarrassment  and  friction. 
There  was  indeed  the  possibility  that  the  Councils  might 
yet  assert  a  claim  of  superiority  over  the  assembly.  On 
February  11  the  Central  Council,  which  had  been  set  up 
in  December,  formally  turned  over  to  the  assembly  the 
powers  which  it  had  received  from  the  Congress  of  Workers 
Councils.  But  insistent  pressure  by  the  Independents, 
and  especially  by  the  Berlin  Executive  Council,  led  to  the 
call  of  a  second  general  Congress.  On  April  5  this  Con- 
gress passed  a  "self-denying"  resolution  by  which  the  way 
was  cleared  for  the  work  of  the  assembly  and  the  establish- 
ment of  parliamentary  government  under  a  permanent 
constitution. 

Dr.    Hugo   Preuss,   Minister   of   the   Interior    in    the 


GERMANY  175 

Scheidemann  Cabinet,  was  chiefly  responsible  for  the  con-     Hugo 
stitution.     His  draft  of  the  provisional  constitution,  which     **«"" 
had  received  the  approval  of  a  conference  of  state  rep- 
resentatives prior  to  the  meeting  of  the  assembly,  was 
the  basic  proposal  out  of  which   the  constitution   was 
evolved. 

Convoked  for  the  primary  purpose  of  making  a  consti-  The  con- 
tution,  the  assembly  was  nevertheless  compelled  to  give  stitution 
attention  to  many  other  important  matters.  Critical  °f  1919 
services  of  the  government  had  to  be  carried  on.  Pressing 
laws  had  to  be  enacted.  Recrudescent  uprisings  of  Com- 
munists and  Spartacists  had  to  be  suppressed.  And  above 
all,  peace  had  to  be  made.  It  was  in  such  distracting  cir- 
cumstances that  the  German  constitution  of  1919  was 
patterned  and  moulded.  On  July  31,  it  was  finally  adopted 
by  a  vote  of  two  hundred  and  sixty-two  to  seventy- 
five,  the  opposition  coming  from  the  extreme  Right  and 
the  extreme  Left.  On  August  11,  it  was  promulgated  and 
published.  It  went  into  effect  immediately;  for  by  its 
own  terms  the  constituent  assembly  was  to  operate  tem- 
porarily in  place  of  the  Reichstag,  and  the  provisional 
President  in  place  of  a  President  elected  by  popular  vote.1 
The  first  Reichstag  was  elected  on  June  6,  1920;  but 

!The  translation  which  follows  was  made  especially  for  this  volume.  Other 
English  versions  are  to  be  found  in  Young,  The  New  Germany,  Appendix;  The 
International  Review,  November  and  December,  1919;  and  Temperley,  Ed.,  A 
History  of  the  Peace  Conference  of  Paris,  Vol.  Ill,  p.  347  (London,  1920).  There 
is  also  a  translation  by  Professors  William  Bennett  Munro  and  Arthur  Norman 
Holcombe  which  appeared  in  League  of  Nations,  Vol.  IT,  No.  6  (World  Peace 
Foundation,  December,  1919).  This  translation  is  used  in  the  English  version 
of  Brunei,  La  constitution  attemande  du  11  Aout,  1919,  with  the  result  that 
there  is  some  confusion  of  terms  between  the  constitution  and  the  text.  The 
French  translation  of  the  constitution,  by  M.  Brunet,  is  an  excellent  piece  of 
work. 

M.  Brunei's  book,  translated  by  Joseph  Gollomb  under  the  title  The  New 
German  Constitution  (New  York,  1922)  is  to  date  the  most  valuable  work  dealing 
with  the  constitution.  An  interesting  summary  is  J.  W.  Gordon,  "The  New 
German  Constitution,"  Quarterly  Review,  January,  1921.  See  also  the  refer- 
ences in  Willoughby  and  Rogers,  An  Introduction  to  the  Problem  of  Government, 
p.  375. 

A  great  many  volumes  dealing  with  the  constitution  have  appeared  in  Ger- 
many. Two  of  these  are  now  in  their  third  editions  and  have  elaborate  biblio- 
graphical notes:  Giese,  Die  Verfassung  des  Deutschen  Reiches  vorn  11.  August 


176       NEW  CONSTITUTIONS  OF  EUROPE 

three  years  after  the  promulgation  of  the  constitution  no 
date  had  been  set  for  the  election  of  a  President  by  the 
people. 

2.    CONSTITUTION  OF  THE   GERMAN   REICH1  OF 
AUGUST  11,  1919 

The  German  people  united  in  every  respect  and  inspired  by 
the  determination  to  restore  and  confirm  the  Reich  in  liberty 
and  justice,  to  serve  peace  at  home  and  peace  abroad,  and  to 
further  social  progress,  has  given  itself  this  constitution. 

CHAPTER  I 
THE  REICH:  ITS  ORGANIZATION   AND   FUNCTIONS 

SECTION  I 
THE  REICH  AND  THE  STATES* 

Article  1.     The  German  Reich  is  a  Republic. 

The  political  power  emanates  from  the  people. 

Art.  2.  The  territory  of  the  Reich  consists  of  the  territories 
of  the  German  states.  Other  territories  may  be  incorporated 
in  the  Reich  by  a  national  law,  if  their  populations  so  desire  by 
virtue  of  the  right  of  self-determination. 

Art.  3.  The  national  colors  are  black-red-gold.  The  com- 
mercial flag  is  black-white-red  with  the  national  colors  in  the 
upper  inside  corner. 


1919  (Berlin,  1920)  and  Poetzsch,  Handausgdbe  der  Reichsrerfassung  vam  11. 
August  1919  (Berlin,  1921).  The  last  named  volume  contains  a  summary  of 
recent  legislation  which  will  not  be  without  influence  on  parliamentary  practice. 
A  volume  contrasting  the  new  constitution  with  the  old  is  Navaisky,  Die  Grund- 
danken  der  Reichsverfassung  (Munich,  1920). 

1  We  do  not  translate  "Reich."  The  most  literal  English  equivalent  is  "Em- 
pire" which  has  a  connotation  that  the  framers  of  the  constitution  have  sought 
to  avoid.  In  other  English  versions  "Reich"  has  been  translated  "Realm"  and 
"Commonwealth."  Obviously  neither  of  these  terms  is  wholly  satisfactory. 

*The  German  word  is  "Lander,"  literally  countries,  regions,  or  territories.  It 
has  been  used  deliberately  instead  of  "Staaten",  apparently  to  signify  the 
changed  status  of  the  separate  units  under  the  new  constitution.  (See  above, 
pp.  62  ff.)  The  word  "states"  for  the  members  of  the  Reich  is  therefore  slightly 
misleading;  but  it  has  been  used  because  any  literal  translation  has  too  vague  a 
connotation,  and  because  no  other  term  seemed  more  appropriate.  It  is  of  some 
significance,  moreover,  that  the  constitutions  of  Prussia  and  the  other  units  use 
the  word  "  Staat " — for  example,  Verfassung  des  Friestaats  Preussen.  Through- 
out the  German  constitution  "Staat"  is  occasionally  used  in  a  generic  sense. 


GERMANY  177 

Art.  4.  The  universally  recognized  rules  of  international  law 
are  accepted  as  integral  and  obligatory  parts  of  the  law  of  the 
German  Reich. 

Art  5.  Political  power  shall  be  exercised,  in  matters  pertain- 
ing to  the  Reich,  through  the  organs  of  the  Reich  on  the  basis 
of  the  national  constitution,  and,  in  matters  pertaining  to  the 
states,  through  the  organs  of  the  states  on  the  basis  of  the  con- 
stitutions of  the  states. 

Art.  6.  The  Reich  shall  have  the  exclusive  power  of  legisla- 
tion in  respect  to: 

(1)  Foreign  relations. 

(2)  Colonies. 

(3)  Citizenship,  freedom  of   movement,  immigration  and 
emigration,  extradition. 

(4)  National  defence. 

(5)  Currency. 

(6)  Customs,  including  uniformity  in  customs  and  commer- 
cial districts  and  the  free  transit  of  goods. 

(7)  Posts  and  telegraphs,  including  telephones. 

Art.  7.  The  Reich  shall  have  power  of  legislation  in  re- 
spect to : 

(1)  Civil  law. 

(2)  Criminal  law. 

(3)  Judicial  procedure,  including  the  execution  of  justice; 
as  well  as  official  assistance  by  one  public  authority  to  another. 

(4)  Passports  and  police  supervision  of  aliens. 

(5)  Poor  relief  and  vagrancy. 

(6)  The  press,  the  right  of  association,  the  right  of  assembly. 

(7)  Problems  of  population,  and  protection  of  maternity, 
infancy,  childhood,  and  adolescence. 

(8)  Public  health,  veterinary  regulations,  and  protection  of 
plants  against  disease  or  injury. 

(9)  The  right  to  work,  insurance  and  protection  of  workers 
and  other  employees,  and  employment  exchanges. 

(10)  The  organization  of  professional  associations  extending 
over  the  Reich. 

(11)  The  care  of  discharged  soldiers  and  their  dependents. 

(12)  The  law  of  expropriation. 

(13)  Socialization  of  natural  resources  and  of  economic  un- 
dertakings, as  well  as  the  manufacture,  production,  distribu- 
tion, and  price-fixing  of  economic  goods  destined  for  public 
use. 


178       NEW  CONSTITUTIONS  OF  EUROPE 

(14)  Commerce,  weights  and  measures,  the  issue  of  paper 
money,  banking,  and  stock  and  produce  exchanges. 

(15)  Commerce  in  foodstuffs  and  food  luxuries,  as  well  as 
in  commodities  of  daily  use. 

(16)  Industry  and  mining. 

(17)  Insurance. 

(18)  Maritime  commerce,  deep  sea  and  coast  fisheries. 

(19)  Railways,  internal  navigation,  motor  traffic  by  land, 
sea,  and  air,  and  the  construction  of  roads  for  general  traffic 
and  national  defense. 

(20)  Theaters  and  cinematographs. 

Art.  8.  The  Reich  shall  have  in  addition  the  power  of  leg- 
islation as  to  taxation  and  other  revenues  in  so  far  as  they  are 
claimed  in  whole  or  in  part  for  its  purposes.  If  the  Reich  lays 
claim  to  taxes  or  other  revenues  which  formerly  belonged  to  the 
states,  due  consideration  must  be  given  to  the  protection  of  the 
financial  needs  of  the  states. 

Art.  9.  In  so  far  as  it  is  necessary  to  issue  uniform  regula- 
tions, the  Reich  shall  have  the  power  of  legislation  in  respect  to : 

(1)  Social  welfare. 

(2)  Protection  of  public  order  and  safety. 

Art.  10.  The  Reich  may  by  law  prescribe  fundamental 
principles  with  respect  to: 

(1)  Rights  and  duties  of  religious  associations. 

(2)  Education,  including  higher  education  and  scientific 
libraries. 

(3)  Rights  of  officials  of  all  public  bodies. 

(4)  Land  titles,  land  distribution,  land  colonization  and 
homesteads,  entail,  housing,  and  distribution  of  the  population. 

(5)  Disposition  of  the  dead. 

Art.  11.  In  so  far  as  is  necessary  the  Reich  may  by  law 
prescribe  fundamental  principles  with  respect  to  the  imposition 
and  collection  of  state  taxes  in  order  to  safeguard  important 
commercial  interests,  or  in  order  to  prevent: 

(1)  Prejudice  to  the  national  revenues  or  the  commercial 
relations  of  the  Reich. 

(2)  Double  taxation. 

(3)  Levies  on  public  communications  or  institutions  which 
are  excessive  or  which  interfere  with  communication. 

(4)  Discriminatory  taxes  upon  imported  goods  as  against, 
domestic  products  in  interstate  or  local  commerce. 

(5)  Export  premiums. 


GERMANY  179 

Art.  12.  As  long  as,  and  in  so  far  as,  the  Reich  does  not 
make  use  of  its  powers  of  legislation,  the  states  shall  retain  the 
power  of  legislation.  This  does  not  apply  to  the  power  of  legis- 
lation which  belongs  exclusively  to  the  Reich. 

The  National  Ministry  shall  have  the  right  to  veto  laws  of 
the  states  which  relate  to  matters  covered  by  Article  7,  sub- 
section 13,  in  so  far  as  the  welfare  of  the  people  of  the  Reich 
is  thereby  affected. 

Art.  13.     National  laws  are  superior  to  the  laws  of  the  states. 

Should  any  doubt  or  difference  of  opinion  arise  as  to  whether 
a  state  regulation  is  compatible  with  a  law  of  the  Reich,  the 
competent  national  or  state  authority  may  request  a  decision 
from  a  superior  judicial  court  of  the  Reich  in  accordance  with 
the  more  specific  requirements  of  a  national  law. 

Art.  14.  National  laws  shall  be  executed  by  the  authorities 
of  the  states  in  so  far  as  the  national  laws  do  not  otherwise 
provide. 

Art.  15.  The  National  Ministry  shall  have  the  right  to 
supervise  those  matters  in  respect  to  which  it  has  the  power  of 
legislation. 

In  so  far  as  national  laws  are  to  be  executed  by  the  authorities 
of  the  states  the  National  Ministry  may  lay  down  general  di- 
rections. The  National  Ministry  shall  have  power  to  send 
commissioners  to  the  Central  authorities  of  the  states,  and  with 
their  concurrence  to  subordinate  authorities,  in  order  to  super- 
vise the  execution  of  the  national  laws. 

It  is  the  duty  of  the  state  ministries  to  remedy,  on  the  request 
of  the  National  Ministry,  deficiencies  which  may  have  appeared 
in  the  course  of  the  execution  of  national  laws.  In  case  of  dis- 
pute, both  the  National  Ministry  and  the  state  ministries  may 
request  a  decision  from  the  Supreme  Judicial  Court  (Staats- 
gerichtshof),  provided  another  court  is  not  prescribed  by  national 
law. 

Art.  16.  Officials  charged  with  the  direct  administration  of 
national  affairs  in  any  state  shall,  as  a  rule,  be  citizens  of  that 
state.  Officials,  employees,  and  workers  of  the  national  admin- 
istration shall,  at  their  request,  be  employed  within  their  home 
districts,  in  so  far  as  this  is  possible,  and  in  so  far  as  may  be 
consistent  with  the  requirements  of  the  service  and  of  their 
training. 

Art.  17.  Every  state  must  have  a  republican  constitution 
(freistaatliche  Verfassung}.  The  representative  body  must  be 


180       NEW  CONSTITUTIONS  OF  EUROPE 

elected  by  universal,  equal,  direct,  and  secret  suffrage  of  all 
German  citizens  of  either  sex,  according  to  the  principles  of  pro- 
portional representation.  The  state  ministry  must  have  the 
confidence  of  the  representative  body. 

The  principles  applicable  to  elections  to  the  representative 
body  shall  apply  also  to  elections  to  municipal  bodies.  Never- 
theless, by  a  state  law  the  right  of  suffrage  may  be  made  to  de- 
pend upon  residence  within  the  municipality  for  a  period  not 
exceeding  one  year. 

Art.  18.1  The  division  of  the  Reich  into  states  shall  serve  the 
highest  economic  and  cultural  progress  of  the  people,  with  due 
regard  to  the  wishes  of  the  population  affected.  The  alteration 
of  state  boundaries  and  the  creation  of  states  within  the  Reich 
shall  take  place  by  virtue  of  national  law  modifying  the  con- 
stitution. 

Where  the  states  directly  affected  consent,  an  ordinary  na- 
tional law  shall  suffice. 

An  ordinary  national  law  shall  also  suffice  where  one  of  the 
states  affected  does  not  consent,  but  where  the  alteration  of  a 
boundary  or  the  creation  of  a  new  state  is  demanded  by  the 
wishes  of  the  population  and  an  overwhelming  national  interest 
requires  it. 

The  wishes  of  the  population  shall  be  ascertained  by  a  referen- 
dum. The  National  Ministry  shall  order  such  a  referendum 
to  take  place  upon  demand  of  one-third  of  the  residents  of  the 
territory  to  be  separated  who  are  qualified  to  vote  for  members 
of  the  Reichstag. 

Three-fifths  of  the  votes  recorded,  and  at  least  a  majority  of 
the  total  number  of  electors,  are  necessary  to  effect  any  altera- 
tion of  boundaries  or  the  creation  of  a  new  state.  Even  for  the 
separation  of  only  a  part  of  a  Prussian  governmental  district 
or  of  a  corresponding  administrative  district  in  any  other  state, 
the  wishes  of  the  population  of  the  whole  district  affected  must 
be  ascertained.  If  there  is  no  geographical  connection  between 
the  portion  to  be  separated  and  the  whole  district,  a  special 
national  law  may  declare  that  the  wishes  of  the  population  of 
the  part  to  be  separated  shall  be  sufficient. 

When  the  wishes  of  the  population  have  been  ascertained,  the 
National  Ministry  shall  submit  an  appropriate  law  to  the 
Reichstag  for  its  acceptance. 

If  a  dispute  arises  on  the  occasion  of  a  union  or  a  separation 

'See  below,  Art.  167. 


GERMANY  181 

of  territory  in  respect  to  property  rights,  it  shall  be  decided  by 
the  Supreme  Judicial  Court  of  the  Reich  at  the  request  of  either 
party. 

Art.  19.  If  constitutional  controversies  arise  within  a  state, 
for  the  decision  of  which  there  is  no  competent  court,  or  should 
controversies  of  a  public  nature  arise  between  different  states 
or  between  the  Reich  and  a  single  state,  the  Supreme  Judicial 
Court  of  the  German  Reich  shall  decide  the  controversy  on  the 
appeal  of  either  of  the  contesting  parties,  if  no  other  court  of 
the  Reich  is  competent.  The  President  of  the  Reich  shall  exe- 
cute the  decision  of  the  Supreme  Judicial  Court. 

SECTION  II 
THE  REICHSTAG 

Art.  20.  The  Reichstag  shall  be  composed  of  the  representa- 
tives of  the  German  people. 

Art.  21.  The  deputies  shall  be  representatives  of  the  entire 
people.  They  are  subject  only  to  their  conscience  and  are  not 
bound  by  instructions. 

Art.  22.  The  deputies  shall  be  elected  by  the  universal, 
equal,  direct  and  secret  suffrage  of  all  men  and  women  over 
twenty  years  of  age,  according  to  the  principles  of  proportional 
representation.  Election  day  must  be  a  Sunday  or  a  public 
holiday.  Detailed  regulations  shall  be  proscribed  by  a  national 
electoral  law. 

Art.  23.  The  Reichstag  shall  be  elected  for  a  four-year  term. 
A  new  election  shall  take  place  no  later  than  sixty  days  after  the 
expiration  of  its  term. 

The  Reichstag  shall  assemble  for  its  first  meeting  no  later  than 
the  thirtieth  day  after  election. 

Art.  24.  The  Reichstag  shall  assemble  on  the  first  Wednes- 
day of  November  in  every  year  at  the  seat  of  the  National 
Ministry.  The  President  of  the  Reichstag  must  call  it  together 
at  an  earlier  date  if  the  President  of  the  Reich  or  at  least  one- 
third  of  the  deputies  of  the  Reichstag  demand  it. 

The  Reichstag  shall  determine  the  date  of  the  close  of  its 
session  and  the  date  of  its  re-assembly. 

Art.  25.  The  President  of  the  Reich  may  dissolve  the  Reichs- 
tag, but  only  once  for  the  same  cause. 

A  new  election  must  be  held  no  later  than  the  sixtieth  day 
after  the  dissolution. 


Art.  26.  The  Reichstag  shall  choose  its  own  President,  its 
Vice-Presidents,  and  its  Secretaries.  It  shall  determine  its  own 
rules  of  procedure. 

Art.  27.  Between  two  sessions  or  between  legislative  terms 
the  President  and  Vice-Presidents  of  the  last  session  shall  carry 
on  its  business. 

Art.  28.  The  President  shall  exercise  powers  of  discipline 
and  police  within  the  Reichstag  building.  The  administration 
of  the  building  is  under  his  control;  he  has  control  over  the  in- 
come and.  expenditures  for  the  building  within  the  limits  laid 
down  by  the  national  budget,  and  he  represents  the  Reich  in  all 
legal  business  and  legal  actions  involved  in  his  administration 
of  the  building. 

Art.  29.  The  sittings  of  the  Reichstag  shall  be  public.  On 
the  demand  of  fifty  deputies  the  public  may  be  excluded  by  a 
two-thirds  majority  vote. 

Art.  30.  True  and  accurate  reports  of  the  proceedings  at  the 
public  sittings  of  the  Reichstag,  or  of  a  Landtag,  or  of  their 
committees  are  privileged  matters. 

Art.  31.  A  tribunal  to  examine  election  returns  shall  be  in- 
stituted by  the  Reichstag.  It  shall  also  decide  whether  a  deputy 
has  lost  his  seat. 

The  tribunal  to  examine  election  returns  shall  be  composed  of 
members  of  the  Reichstag  elected  by  the  Reichstag  for  the  legis- 
lative term,  and,  in  addition,  of  members  of  the  Supreme  Admin- 
istrative Court  (Reichsverwaltungsgerichi)  whom  the  President 
of  the  Reich  shall  appoint  on  nomination  of  the  presidency  of 
that  Court. 

The  tribunal  to  examine  election  returns  shall  pronounce 
judgment  on  the  basis  of  public  and  oral  sittings  by  a  quorum 
of  three  members  of  the  Reichstag  and  two  judicial  members. 

Proceedings  apart  from  the  sittings  of  the  tribunal  to  examine 
election  returns  shall  be  conducted  by  a  commissioner  of  the 
Reich  appointed  by  the  President  of  the  Reich.  In  other  re- 
spects, procedure  shall  be  regulated  by  the  tribunal  to  examine 
election  returns. 

Art.  32.  A  resolution  of  the  Reichstag  requires  a  simple 
majority  of  the  votes  cast,  except  as  the  constitution  requires 
another  majority.  The  rules  of  procedure  of  the  Reichstag  may 
permit  exceptions  in  the  case  of  elections  held  by  it. 

The  quorum  shall  be  determined  by  the  rules  of  procedure. 

Art.  33.    The  Reichstag  and  the  committees  of  the  Reichstag 


GERMANY  183 

may  demand  the  presence  of  the  Chancellor  and  of  every  min- 
ister. 

The  Chancellor,  the  ministers,  and  their  deputies  shall  have 
access  to  the  sittings  of  the  Reichstag  and  of  its  committees. 
The  states  shall  be  privileged  to  send  authorized  agents  to  these 
sittings  who  shall  submit  the  views  of  their  ministries  upon 
matters  under  discussion.  On  demand,  the  representatives  of 
the  state  governments  must  be  heard  during  the  deliberations; 
and  the  representatives  of  the  National  Ministry  must  also  be 
heard  regardless  of  the  order  of  the  day. 

They  shall  be  subject  to  the  rulings  of  the  presiding  officer. 

Art.  34.  The  Reichstag  shall  have  the  right  to,  and  upon  the 
proposal  of  one-fifth  of  its  members  must,  set  up  committees  of 
investigation.  These  committees  shall  in  public  sitting  inquire 
into  such  evidence  as  they  or  the  petitioners  consider  necessary. 
The  public  may  be  excluded  from  sittings  of  a  committee  of  in- 
vestigation by  a  two-thirds  majority  vote.  The  rules  of  proce- 
dure shall  regulate  the  business  of  the  committee  and  determine 
the  number  of  its  members. 

The  courts  and  administrative  authorities  are  required  to  sub- 
mit evidence  requested  by  these  committees;  upon  their  demand 
the  records  of  the  authorities  shall  be  laid  before  them. 

The  provisions  of  the  criminal  code  shall  apply,  as  far  as  may 
be,  to  the  inquiries  of  committees  and  of  the  authorities  assisting 
them;  nevertheless,  the  secrecy  of  the  postal,  telegraph,  and  tele- 
phone services  shall  remain  unaffected. 

Art.  35.  The  Reichstag  shall  appoint  a  standing  committee 
on  foreign  affairs  which  may  act  between  sessions  of  the  Reichs- 
tag and  after  the  end  of  the  legislative  term,  or  between  the  dis- 
solution of  the  Reichstag  and  the  convening  of  a  new  Reichstag. 
The  sittings  of  this  committee  shall  not  be  public,  unless  the 
committee  itself  decides  by  a  two-thirds  majority  vote  to  admit 
the  public. 

The  Reichstag  shall  further  appoint  a  standing  committee 
for  the  protection  of  the  rights  of  the  representative  body  over 
against  the  National  Ministry,  for  the  period  between  sessions 
and  after  the  end  of  a  legislative  term. 

These  committees  shall  have  the  powers  of  committees  of 
investigation. 

Art.  36.  No  member  of  the  Reichstag  or  of  a  Landtag  may 
at  any  time  be  subjected  to  judicial  or  administrative  prosecu- 
tion, or  otherwise  held  responsible  outside  the  sittings,  by 


184       NEW  CONSTITUTIONS  OF  EUROPE 

reason  of  his  vote  or  by  reason  of  any  utterances  made  in  his 
official  capacity. 

Art.  37.  No  member  of  the  Reichstag  or  of  a  Landtag  may, 
without  the  consent  of  the  house  of  which  he  is  a  member,  be 
subjected  to  investigation  or  arrest  during  the  session  for  a 
penal  offense  unless  he  is  apprehended  in  the  commission  of  the 
act,  or  at  latest  in  the  course  of  the  following  day. 

Consent  is  similarly  required  for  every  other  restriction  of 
personal  liberty  which  obstructs  a  deputy  in  the  exercise  of  his 
office. 

Every  criminal  proceeding  against  a  member  of  the  Reichstag 
or  of  a  Landtag  and  every  arrest  or  other  restriction  on  his  per- 
sonal liberty  shall,  on  demand  of  the  house  to  which  the  deputy 
belongs,  be  deferred  for  the  duration  of  the  session. 

Art.  38.  The  members  of  the  Reichstag  and  of  the  Landtags 
have  the  right  to  refuse  to  give  evidence  as  to  persons  who  have 
made  communications  to  them  in  their  capacity  as  deputies,  and 
to  whom  they  have  given  information  in  the  exercise  of  their 
office,  as  well  as  in  respect  to  the  facts  themselves.  With  regard 
also  to  the  seizure  of  documents  their  position  is  identical  with 
that  of  persons  who  have  the  legal  right  to  refuse  to  give  evi- 
dence. 

A  search  or  seizure  may  not  take  place  within  the  rooms  of  the 
Reichstag  or  of  a  Landtag  except  with  the  consent  of  its  President. 

Art.  39.  Public  officials  or  members  of  the  military  forces 
shall  not  require  leave  in  order  to  exercise  their  functions  as 
members  of  the  Reichstag  or  of  a  Landtag. 

If  they  seek  election  to  these  bodies,  leave  necessary  to  carry 
on  their  campaign  shall  be  granted  to  them. 

Art.  40.  The  members  of  the  Reichstag  shall  have  the  right 
of  free  transportation  on  all  German  railways  as  well  as  com- 
pensation provided  by  national  law. 


SECTION  III 
THE  PRESIDENT  OF  THE  REICH  AND  THE  NATIONAL  MINISTRY 

Art.  41.  The  President  of  the  Reich  shall  be  elected  by  the 
whole  German  people. 

Every  German  who  has  completed  his  thirty-fifth  year  is 
eligible.  Detailed  regulations  shall  be  prescribed  by  a  national 
law. 


GERMANY  185 

Art.  42.  The  President  of  the  Reich  shall  take  the  following 
oath  on  assuming  office — 

I  swear  that  I  will  devote  my  energy  to  the  good  of  the  Ger- 
man people,  that  I  will  advance  the  people's  interests,  will  pro- 
tect the  people  from  injury,  will  maintain  the  constitution  and 
the  laws,  will  fulfill  my  duties  conscientiously,  and  will  exercise 
justice  toward  all. 

The  addition  of  a  religious  oath  is  permissible. 

Art.  43.  The  term  of  office  of  the  President  shall  be  seven 
years.  Reelection  is  permissible. 

Before  the  expiration  of  his  term  the  President  of  the  Reich 
may  be  removed  from  office  by  popular  vote  on  resolution  of  the 
Reichstag.  The  resolution  of  the  Reichstag  requires  a  two- 
thirds  majority  vote.  By  such  resolution  the  President  is  sus- 
pended from  further  exercise  of  his  functions.  If  the  popular 
vote  fails  to  remove  the  President  such  vote  shall  be  regarded  as 
a  new  election  of  the  President  and  a  dissolution  of  the  Reichs- 
tag shall  follow. 

The  President  of  the  Reich  may  not  be  subjected  to  criminal 
prosecution  without  the  consent  of  the  Reichstag. 

Art.  44.  The  President  of  the  Reich  may  not  at  the  same 
time  be  a  member  of  the  Reichstag. 

Art.  45.  The  President  of  the  Reich  represents  the  Reich  in 
international  relations.  In  the  name  of  the  Reich  he  makes 
alliances  and  other  treaties  with  foreign  powers.  He  accredits 
and  receives  diplomatic  representatives. 

Declaration  of  war  and  conclusion  of  peace  shall  be  made  by 
national  law. 

Alliances  and  treaties  with  foreign  states  which  relate  to  sub- 
jects of  national  legislation  require  the  consent  of  the  Reichstag. 

Art.  46.  The  President  of  the  Reich  shall  appoint  and  re- 
move national  officials  and  military  officers  of  the  Reich,  except 
as  otherwise  provided  by  law.  He  may  permit  other  authorities 
to  exercise  the  powers  of  appointment  and  removal. 

Art.  47.  The  President  of  the  Reich  shall  have  supreme 
command  over  the  entire  military  forces  of  the  Reich. 

Art.  48.  If  a  state  fails  to  carry  out  the  duties  imposed  upon 
it  by  the  national  constitution  or  national  laws,  the  President  of 
the  Reich  may  compel  performance  with  the  aid  of  armed  force. 

If  public  safety  and  order  be  seriously  disturbed  or  threatened 
within  the  German  Reich,  the  President  of  the  Reich  may  take 
the  necessary  measures  to  restore  public  safety  and  order;  if 


186       NEW  CONSTITUTIONS  OF  EUROPE 

necessary,  with  the  aid  of  armed  force.  For  this  purpose  he 
may  temporarily  suspend  in  whole  or  in  part  the  fundamental 
rights  enumerated  in  Articles  114,  115,  117,  118,  123,  124  and 
153. 

The  President  of  the  Reich  must  immediately  communicate 
to  the  Reichstag  all  measures  taken  by  virtue  of  Paragraph  1 
or  Paragraph  2  of  this  Article.  On  demand  of  the  Reichstag 
these  measures  must  be  abrogated. 

If  there  be  danger  in  delay,  the  state  ministry  may,  for  its  own 
territory,  take  such  temporary  measures  as  are  indicated  in  Para- 
graph 2.  On  demand  by  the  President  of  the  Reich  or  by  the 
Reichstag  such  measures  shall  be  abrogated. 

Detailed  regulations  shall  be  prescribed  by  a  national  law. 

Art.  49.  The  President  of  the  Reich  shall  exercise  the 
pardoning  power  for  the  Reich.  For  national  amnesties  a  na- 
tional law  is  necessary. 

Art.  50.  All  orders  and  decrees  of  the  President  of  the 
Reich,  including  those  concerning  the  armed  force,  require  for 
their  validity  the  counter-signature  of  the  Chancellor  or  of  the 
competent  national  minister.  Responsibility  is  accepted  by 
the  act  of  counter-signature. 

Art.  51.  In  case  of  disability  the  President  of  the  Reich  shall 
be  represented  first  of  all  by  the  Chancellor.  If  the  disability 
will  presumably  continue  for  a  longer  time,  the  matter  of  a  sub- 
stitute shall  be  determined  by  national  law. 

In  case  of  a  premature  vacancy  in  the  presidency,  the  same 
course  shall  be  followed  until  a  new  election  has  been  held. 

Art.  52.  The  National  Ministry  shall  consist  of  the  Chan- 
cellor and  the  national  ministers. 

Art.  53.  The  Chancellor  and,  upon  his  recommendation, 
the  national  ministers  shall  be  appointed  and  removed  by  the 
President  of  the  Reich. 

Art.  54.  The  Chancellor  and  national  ministers  must  have 
the  confidence  of  the  Reichstag  for  the  exercise  of  their  offices. 
Any  one  of  them  must  resign  if  the  Reichstag  withdraws  its  con- 
fidence by  express  resolution. 

Art.  55.  The  Chancellor  shall  preside  over  the  National 
Ministry,  and  shall  conduct  its  business  according  to  rules  of 
procedure  which  shall  be  determined  by  the  National  Ministry 
and  approved  by  the  President  of  the  Reich. 

Art.  56.  The  Chancellor  shall  lay  down  the  general  course 
of  policy  and  shall  be  responsible  therefor  to  the  Reichstag. 


GERMANY  187 

In  accordance  with  this  general  policy  each  national  minister 
shall  independently  conduct  the  branch  of  administration  in- 
trusted to  him,  and  shall  be  under  personal  responsibility  to  the 
Reichstag. 

Art.  57.  National  ministers  shall  submit  to  the  National 
Ministry  for  consideration  and  decision  all  legislative  proposals 
and  all  matters  for  which  the  constitution  or  the  laws  require 
such  submission,  as  well  as  differences  of  opinion  on  questions 
which  concern  the  sphere  of  action  of  more  than  one  national 
minister. 

Art.  58.  The  National  Ministry  shall  reach  its  decisions  by 
majority  vote.  In  case  of  a  tie  the  vote  of  the  presiding  officer 
shall  decide. 

Art.  59.  The  Reichstag  shall  have  power  to  bring  before 
the  Supreme  Judicial  Court  impeachment  proceedings  against 
the  President  of  the  Reich,  the  Chancellor,  and  the  national 
ministers,  for  a  wrongful  violation  of  the  constitution  or  a 
national  law.  The  bill  of  impeachment  must  be  signed  by  at 
least  one  hundred  members  of  the  Reichstag  and  requires  the  ap- 
proval of  the  majority  necessary  for  constitutional  amendments. 
Detailed  regulations  for  the  Supreme  Judicial  Court  shall  be 
prescribed  by  a  national  law. 

SECTION  rv 
THE  REICHSRAT 

Art.  60.  A  Reichsrat  shall  be  established  to  represent  the 
German  states  in  national  legislation  and  administration. 

Art.  61.  Each  state  shall  have  at  least  one  vote  in  the 
Reichsrat.  The  larger  states  shall  have  one  vote  for  each  million 
of  inhabitants.  Any  fraction  which  is  equal  at  least  to  the  total 
number  of  the  inhabitants  of  the  smallest  state  shall  be  counted 
as  a  million.  No  state  may  have  a  representation  of  more  than 
two-fifths  of  the  members. 

German-Austria,  after  union  with  the  German  Reich,  shall  be 
represented  in  the  Reichsrat  by  votes  corresponding  in  number 
to  its  population.  Meanwhile  the  representatives  of  German- 
Austria  shall  have  a  deliberative  voice.1 

1  Stricken  out  at  the  demand  of  the  Supreme  Council  of  the  Allied  and  Asso- 
ciated Powers.  The  Supreme  Council  addressed  the  following  demand  to  Ger- 
many on  September  2,  1919: 

"The  Allied  and  Associated  Powers  have  examined  the  German  Constitution 
of  August  11,  1919.  They  observe  that  the  provisions  of  the  second  paragraph 


188       NEW  CONSTITUTIONS  OF  EUROPE 

The  representatives  shall  be  reapportioned  by  the  Reichsrat 
after  each  general  census. 

Art.  62.  No  state  may  have  more  than  one  vote  in  commit- 
tees appointed  by  the  Reichsrat  from  its  own  membership. 

Art.  63.  The  states  shall  be  represented  in  the  Reichsrat  by 
members  of  their  ministries.  But  one-half  of  the  Prussian 
representatives  shall  be  appointed,  in  accordance  with  a  state 

of  Article  61  constitute  a  formal  violation  of  Article  80  of  the  Treaty  of  Peace 
signed  at  Versailles  on  June  28,  1919.  This  violation  is  twofold. 

"  1.  Article  61  by  stipulating  for  the  admission  of  Austria  to  the  Reichsrat 
assimilates  that  Republic  to  the  German  States  composing  the  German  Empire 
— an  assimilation  which  is  incompatible  with  respect  to  the  independence  of 
Austria. 

"2.  By  admitting  and  providing  for  the  participation  of  Austria  in  the  Coun- 
cil of  the  Empire  Article  61  creates  a  political  tie  and  a  common  political  action 
between  Germany  and  Austria  in  absolute  opposition  to  the  independence  of  the 
latter. 

"In  consequence  the  Allied  and  Associated  Powers,  after  reminding  the  Ger- 
man Government  that  Article  178  of  the  German  Constitution  declares  that 
'the  provisions  of  the  Treaty  of  Versailles  can  not  be  affected  by  the  Constitu- 
tion,' invite  the  German  Government  to  take  the  necessary  measures  to  efface 
without  delay  this  violation  by  declaring  Article  61,  Paragraph  2,  to  be  null  and 
void. 

"Without  prejudice  to  subsequent  measures  in  case  of  refusal,  and  in  virtue 
of  the  Treaty  of  Peace  (and  in  particular  Article  29),  the  Allied  and  Associated 
Powers  inform  the  German  Government  that  this  violation  of  its  engagements 
on  an  essential  point  will  compel  them,  if  satisfaction  is  not  given  to  their  just 
demand  within  15  days  from  the  date  of  the  present  note,  immediately  to  order 
the  extension  of  their  occupation  on  the  right  bank  of  the  Rhine." 

Article  29  of  the  Treaty  of  Peace  refers  to  Map  No.  1  which  shows  the  boun- 
daries of  Germany  and  provides  that  the  text  of  Articles  27  and  28  will  be  final 
as  to  those  boundaries.  Article  80  reads  as  follows: 

"  Germany  acknowledges  and  will  respect  strictly  the  independence  of  Austria, 
within  the  frontiers  which  may  be  fixed  in  a  Treaty  between  that  State  and  the 
Principal  Allied  and  Associated  Powers;  she  agrees  that  this  independence  shall  be 
inalienable,  except  with  the  consent  of  the  Council  of  the  League  of  Nations." 

A  diplomatic  act  was  signed  at  Paris  on  September  22, 1919,  by  the  representa- 
tives of  the  Principal  Allied  and  Associated  Powers  and  Germany  in  the  following 
terms: 

"The  undersigned,  duly  authorized  and  acting  in  the  name  of  the  German 
Government,  recognizes  and  declares  that  all  the  provisions  of  the  German  Con- 
stitution of  August  11, 1919,  which  are  in  contradiction  of  the  terms  of  the  Treaty 
of  Peace  signed  at  Versailles  on  June  28,  1919,  are  null. 

"The  German  Government  declares  and  recognizes  that  in  consequence  Para- 
graph 2  of  Article  61  of  the  said  Constitution  is  null,  and  that  in  particular  the 
admission  of  Austrian  representatives  to  the  Reichstag  could  only  take  place 
in  the  event  of  the  consent  of  the  Council  of  the  League  of  Nations  to  a  corre- 
sponding modification  of  Austria's  international  situation. 

"The  present  declaration  shall  be  approved  by  the  competent  German  legisla- 
tive authority,  within  the  fortnight  following  the  entry  into  force  of  the  Peace 
Treaty. 

"Given  at  Versailles,  September  22,  1919,  in  the  presence  of  the  undersigned 
representatives  of  the  Principal  Allied  and  Associated  Powers." 

Cf.  below,  Article  178. 


GERMANY  189 

law,  from  among  the  Prussian  provincial  administrative  author- 
ities. 

The  states  may  send  to  the  Reichsrat  as  many  representatives 
as  they  have  votes. 

Art.  64.  Upon  demand  of  one-third  of  its  members  the 
Reichsrat  must  be  convened  by  the  National  Ministry. 

Art.  65.  A  member  of  the  National  Ministry  shall  preside 
over  the  Reichsrat  and  over  its  committees.  The  members 
of  the  National  Ministry  have  the  right  to,  and  upon  demand 
must,  take  part  in  the  proceedings  of  the  Reichsrat  and  its  com- 
mittees. On  their  demand  they  must  be  heard  at  any  time  dur- 
ing the  deliberations. 

Art.  66.  The  National  Ministry,  as  well  as  every  member 
of  the  Reichsrat,  may  initiate  proposals  in  the  Reichsrat. 

The  Reichsrat  shall  determine  its  order  of  business  by  rules 
of  procedure. 

The  plenary  sessions  of  the  Reichsrat  shall  be  public.  Ac- 
cording to  the  rules  of  procedure  the  public  may  be  excluded 
during  the  discussion  of  certain  matters. 

Decisions  shall  be  reached  by  simple  majority  vote. 

Art.  67.  The  Reichsrat  shall  be  kept  informed  by  the  na- 
tional departments  concerning  the  conduct  of  national  business. 
In  deliberations  upon  important  matters  the  appropriate  com- 
mittees of  the  Reichsrat  shall  be  consulted  by  the  national  de- 
partments. 

SECTION  v 

NATIONAL  LEGISLATION 

Art.  68.  Bills  shall  be  introduced  by  the  National  Ministry, 
or  by  members  of  the  Reichstag. 

National  laws  shall  be  enacted  by  the  Reichstag. 

Art.  69.  The  initiation  of  bills  by  the  National  Ministry 
shall  require  the  consent  of  the  Reichsrat.  If  the  National 
Ministry  and  the  Reichsrat  fail  to  agree,  the  National  Ministry 
may,  nevertheless,  introduce  the  bill,  but  must  present  there- 
with the  dissenting  opinion  of  the  Reichsrat. 

If  the  Reichsrat  passes  a  bill  to  which  the  National  Ministry 
fails  to  assent,  the  Ministry  must  introduce  such  bill  in  the 
Reichstag  accompanied  by  an  expression  of  its  views. 

Art.  70.  The  President  of  the  Reich  shall  proclaim  the  laws 
constitutionally  enacted,  and  shall  publish  them  within  a  month 
in  the  National  Law  Gazette. 


190       NEW  CONSTITUTIONS  OF  EUROPE 

Art.  71.  National  laws,  unless  otherwise  provided,  shall 
be  effective  on  the  fourteenth  day  after  the  day  of  publication  in 
the  National  Law  Gazette  in  the  capital  of  the  Reich. 

Art.  72.  Publication  of  a  national  law  shall  be  deferred  for 
two  months  on  request  of  one-third  of  the  members  of  the 
Reichstag.  Laws  which  the  Reichstag  and  the  Reichsrat  de- 
clare to  be  urgent  may  be  published  by  the  President  of  the 
Reich  regardless  of  this  request. 

Art.  73.  A  law  passed  by  the  Reichstag  shall,  before  its 
publication,  be  subject  to  a  referendum  if  the  President  of  the 
Reich,  within  a  month,  so  decides. 

A  law,  the  publication  of  which  has  been  deferred  on  the 
request  of  one-third  of  the  members  of  the  Reichstag  shall  be 
subject  to  a  referendum  upon  the  request  of  one-twentieth  of 
the  qualified  voters. 

A  referendum  shall  also  take  place,  if  one-tenth  of  the  qualified 
voters  petition  for  the  submission  of  a  proposed  law.  Such 
petition  must  be  based  on  a  fully  elaborated  bill.  The  bill  shall 
be  submitted  to  the  Reichstag  by  the  Ministry  accompanied  by 
an  expression  of  its  views.  The  referendum  shall  not  take 
place  if  the  bill  petitioned  for  is  accepted  by  the  Reichstag  with- 
out amendment. 

Only  the  President  of  the  Reich  may  order  a  referendum 
concerning  the  budget,  tax  laws,  and  salary  regulations. 

Detailed  regulations  in  respect  to  the  referendum  and  initia- 
tive shall  be  prescribed  by  a  national  law. 

Art.  74.  Laws  enacted  by  the  Reichstag  shall  be  subject  to 
veto  by  the  Reichsrat. 

The  veto  must  be  communicated  to  the  National  Ministry 
within  two  weeks  after  the  final  vote  in  the  Reichstag,  and  within 
two  additional  weeks  must  be  supported  by  reasons. 

In  case  of  veto  the  law  must  be  presented  to  the  Reichstag 
for  reconsideration.  If  no  agreement  upon  the  matter  is  reached 
between  the  Reichstag  and  the  Reichsrat,  the  President  of  the 
Reich  may  within  three  months  submit  the  matter  in  dispute 
to  a  referendum.  If  the  President  fails  to  exercise  this  right, 
the  law  shall  be  considered  as  of  no  effect.  If  the  Reichstag 
overrules  the  veto  of  the  Reichsrat  by  a  two-thirds  majority 
vote,  the  President  shall  within  three  months  publish  the  law 
in  the  form  adopted  by  the  Reichstag  or  shall  order  a  referen- 
dum. 

Art.  75.     A  resolution  of  the  Reichstag  shall  not  be  annulled 


GERMANY  191 

unless  a  majority  of  the  qualified  voters  participate  in  the 
election. 

Art.  76.  The  constitution  may  be  amended  by  legislative 
action.  However,  resolutions  of  the  Reichstag  for  amendment 
of  the  constitution  are  valid  only  if  two-thirds  of  the  legal  mem- 
bers are  present  and  if  two-thirds  of  those  present  give  their 
assent.  Moreover,  resolutions  of  the  Reichsrat  for  amendment 
of  the  constitution  require  a  two -thirds  majority  of  all  the  votes 
cast.  If  by  popular  petition  a  constitutional  amendment  is  to 
be  submitted  to  a  referendum,  it  must  be  approved  by  a  ma- 
jority of  the  qualified  voters. 

If  the  Reichstag  adopts  a  constitutional  amendment  over  the 
veto  of  the  Reichsrat,  the  President  of  the  Reich  shall  not  pub- 
lish this  law  if  the  Reichsrat  within  two  weeks  demands  a  ref- 
erendum. 

Art.  77.  Except  as  otherwise  provided  by  law,  the  National 
Ministry  shall  issue  such  general  administrative  regulations  as 
are  necessary  for  the  execution  of  national  laws.  The  National 
Ministry  requires  for  this  purpose  the  approval  of  the  Reichsrat 
in  cases  in  which  the  execution  of  national  laws  rests  with  the 
authorities  of  the  states. 

SECTION  VI 
NATIONAL  ADMINISTRATION 

Art.  78.  The  conduct  of  relations  with  foreign  states  is  ex- 
clusively the  function  of  the  Reich. 

The  states  may  make  treaties  with  foreign  states  on  matters 
which  fall  within  the  legislative  competence  of  the  states;  but 
such  treaties  require  the  approval  of  the  Reich. 

Agreements  with  foreign  states  concerning  the  alteration  of 
the  national  boundaries  shall  be  concluded  by  the  Reich  with 
the  consent  of  the  state  affected.  Changes  of  boundaries  may 
be  effected  only  by  a  national  law  except  in  case  of  a  simple  ad- 
justment of  the  boundaries  of  uninhabited  districts. 

In  order  to  safeguard  the  representation  of  interests  which 
arise  in  particular  states  from  their  special  economic  relations 
with,  or  their  geographical  contiguity  to,  foreign  states,  the 
Reich  shall  take  the  necessary  measures  and  make  the  necessary 
arrangements  in  agreement  with  the  states  affected. 

Art.  79.  National  defense  is  a  function  of  the  Reich.  The 
organization  of  the  armed  forces  of  the  German  people  shall 


192       NEW  CONSTITUTIONS  OF  EUROPE 

be  regulated  in  a  uniform  manner  by  a  national  law  with  due 
regard  to  the  special  regional  peculiarities  of  the  population. 

Art.  80.  Colonial  affairs  are  within  the  exclusive  jurisdiction 
of  the  Reich. 

Art.  81.  All  German  merchant  ships  shall  form  a  single 
commercial  fleet. 

Art.  82.  Germany  forms  a  single  customs  and  commerce 
zone  surrounded  by  a  common  customs  boundary. 

The  customs  boundary  coincides  with  the  political  boundary. 
On  the  seacoast  the  shore  of  the  mainland  and  of  the  islands 
belonging  to  the  national  territory  shall  form  the  customs  bound- 
ary. Changes  may  be  made  in  the  line  of  the  customs  boundary 
on  the  sea  coasts  and  other  waters. 

Foreign  territories  or  parts  of  territories  may  by  treaties  or 
agreements  be  included  within  the  customs  boundary. 

Under  special  conditions,  portions  of  territory  may  be  ex- 
cluded from  the  customs  zone.  In  the  case  of  free  ports  such  ex- 
clusion may  be  terminated  only  by  a  constitutional  amendment. 

Territories  excluded  from  the  customs  may  be  joined  to  a 
foreign  customs  zone  by  treaties  or  agreements. 

All  natural  products  as  well  as  manufactured  articles  and 
works  of  art  which  are  subjects  of  free  commerce  in  the  Reich 
may  be  carried  across  the  boundaries  of  the  states  for  import, 
export,  or  through  traffic.  Exceptions  may  be  made  by  a  na- 
tional law. 

Art.  83.  Customs  and  consumption  taxes  shall  be  adminis- 
tered by  national  authorities. 

In  the  administration  of  national  taxes  by  national  authorities, 
arrangements  shall  be  made  which  will  permit  the  states  to 
safeguard  special  state  interests  in  respect  to  agriculture,  com- 
merce, trade,  and  industry. 

Art.  84.    The  Reich  shall  by  law  regulate: 

(1)  The  organization  of  the  tax  administration  of  the  states, 
so  far  as  the  uniform  and  impartial  execution  of  national  tax 
laws  requires. 

(2)  The  organization  and  powers  of  the  authorities  em- 
powered to  supervise  the  execution  of  the  national  tax  laws. 

(3)  Accounting  with  the  states. 

(4)  The  reimbursement  of  administrative  expenses  incurred 
in  the  execution  of  the  national  tax  laws. 

Art.  85.  All  revenues  and  appropriations  of  the  Reich  must 
for  each  fiscal  year  be  estimated  and  incorporated  in  the  budget. 


GERMANY  193 

The  budget  shall  be  adopted  by  law  before  the  beginning  of 
the  fiscal  year. 

The  appropriations  shall  as  a  rule  be  voted  for  one  year.  In 
special  cases  they  may  be  voted  for  a  longer  period.  Except  in 
such  cases  the  national  budget  law  shall  not  contain  provisions 
which  run  beyond  the  fiscal  year  or  which  do  not  relate  to  the 
revenues  and  appropriations  of  the  Reich  or  to  their  administra- 
tion. 

The  Reichstag  may  not,  without  the  consent  of  the  Reichsrat, 
increase  appropriations  or  insert  new  items  in  the  draft  of  the 
budget. 

The  consent  of  the  Reichsrat  may  be  dispensed  with  in  accord- 
ance with  the  provisions  of  Article  74. 

Art.  86.  In  the  succeeding  fiscal  year,  the  minister  of  na- 
tional finance  shall  account  to  the  Reichsrat  and  the  Reichstag 
for  the  disposition  of  all  national  revenue  so  as  to  discharge  the 
responsibility  of  the  National  Ministry.  The  audit  shall  be 
regulated  by  national  law. 

Art.  87.  Funds  may  be  procured  on  credit  only  for  extraor- 
dinary needs  and  as  a  rule  only  for  expenditures  for  productive 
works.  Such  a  procurement  as  well  as  the  assumption  of  any 
liability  by  the  Reich  may  be  undertaken  only  by  authority  of  a 
national  law. 

Art.  88.  Posts  and  telegraphs,  including  telephones,  are  ex- 
clusively in  the  hands  of  the  Reich. 

Postage  stamps  shall  be  uniform  throughout  the  entire  Reich. 

The  National  Ministry  shall,  with  the  consent  of  the  Reichs- 
rat, issue  regulations  prescribing  the  conditions  and  rates  for 
the  use  of  the  services  of  communication.  With  the  consent  of 
the  Reichsrat  it  may  delegate  this  function  to  the  national 
minister  of  posts. 

The  National  Ministry  shall,  with  the  consent  of  the  Reichs- 
rat, establish  an  advisory  council  to  consult  and  cooperate  in 
matters  pertaining  to  the  posts,  telegraphs,  telephones,  and 
rates. 

Treaties  with  foreign  states  in  respect  to  communication 
may  be  made  only  by  the  Reich.1 

Art.  89.  It  shall  be  the  duty  of  the  Reich  to  acquire  as  its 
own  property  all  railroads  serving  as  means  of  general  com- 
munication and  to  administer  them  as  a  uniform  system  of 
transportation. 

!See  Article  170. 


The  rights  of  the  states  to  acquire  private  railways  shall  be 
transferred  to  the  Reich  on  its  demand. 

Art.  90.  With  the  taking  over  of  the  railways,  the  Reich 
shall  acquire  the  right  of  expropriation  and  the  public  sovereign 
rights  pertaining  to  the  railway  system.  In  respect  to  the  scope 
of  these  rights  the  Supreme  Judicial  Court  shall  decide  in  case  of 
dispute. 

Art.  91.  The  National  Ministry  shall,  with  the  consent  of 
the  Reichsrat,  issue  regulations  concerning  the  construction, 
operation,  and  traffic  of  the  railways.  With  the  consent  of  the 
Reichsrat  it  may  delegate  this  function  to  the  competent  na- 
tional minister. 

Art.  92.  The  national  railway  system,  notwithstanding  the 
inclusion  of  its  budget  and  its  accounts  in  the  general  budget 
and  general  accounts,  shall  be  administered  as  an  autonomous 
economic  enterprise,  responsible  for  its  own  expenditures  in- 
cluding interest  and  amortization  of  the  railroad  debt  and  the 
accumulation  of  a  railroad  reserve  fund.  The  amount  of  this 
amortization  and  of  the  reserve  fund,  as  well  as  the  purposes  for 
which  the  reserve  fund  shall  be  used,  shall  be  regulated  by 
special  law. 

Art.  93.  The  National  Ministry  shall,  with  the  consent  of 
the  Reichsrat,  establish  advisory  councils  for  the  national  rail- 
way system  to  consult  and  cooperate  in  matters  pertaining  to 
railway  traffic  and  rates. 

Art.  94.  When  the  Reich  has  taken  over  the  railways  serving 
as  means  of  general  communication  within  a  particular  district, 
new  railways  serving  as  means  of  general  communication  may 
be  constructed  within  such  district  only  by  the  Reich  or  with 
its  consent.  If  the  construction  of  new  national  railway  lines 
or  the  alteration  of  existing  lines  touches  upon  the  sphere  of 
the  police  authority  of  a  state,  the  national  railway  administra- 
tion shall,  before  reaching  a  decision,  give  a  hearing  to  the  state 
authorities. 

Where  the  Reich  has  not  acquired  railroads  as  a  part  of 
its  administration,  it  may,  by  virtue  of  a  national  law  and 
even  against  the  objection  of  the  states  whose  territory  is 
crossed,  but  without  prejudice  to  the  sovereign  rights  of  the 
states,  construct  on  its  own  account  such  railways  as  are  deemed 
necessary  for  general  communication  or  national  defense,  or  may 
confer  upon  others  the  power  to  construct,  together  with  a  grant 
of  the  right  of  expropriation  in  case  of  necessity. 


GERMANY  195 

Every  railway  administration  must  consent  to  connection  with 
other  railroads  at  the  latter 's  expense. 

Art.  95.  Railways  of  general  communication  which  are  not 
administered  by  the  Reich,  are  subject  to  supervision  by  the 
Reich. 

Railways  subject  to  the  supervision  of  the  Reich  shall  be  con- 
structed and  equipped  according  to  uniform  standards  estab- 
lished by  the  Reich.  They  must  be  maintained  in  safe  working 
order  and  must  be  extended  to  meet  traffic  requirements.  Pas- 
senger and  freight  service  shall  be  furnished  and  developed  ac- 
cording to  needs. 

In  connection  with  the  supervision  of  matters  pertaining  to 
rates,  effort  shall  be  made  to  secure  uniform  and  low  railway 
rates. 

Art.  96.  All  railways,  including  those  not  serving  as  means 
of  general  communication,  must  comply  with  the  requirements 
of  the  Reich  for  the  use  of  the  railways  for  purposes  of  national 
defense. 

Art.  97.  It  shall  be  the  duty  of  the  Reich  to  acquire  as  its 
own  property  and  to  administer  waterways  serving  as  means 
of  general  communication. 

After  such  acquisition,  waterways  serving  as  means  of  general 
communication  may  be  constructed  or  extended  only  by  the 
Reich  or  with  its  consent. 

In  the  administration,  extension,  or  new  construction  of 
waterways  the  requirements  of  agriculture  and  of  water  supply 
shall  be  safeguarded  in  cooperation  with  the  states.  Considera- 
tion must  also  be  given  to  the  promotion  of  these  interests. 

Every  waterways  administration  shall  consent  to  connection 
with  other  inland  waterways  at  the  expense  of  the  entrepreneur. 
The  same  obligation  shall  apply  to  the  construction  of  a  con- 
nection between  inland  waterways  and  railways. 

In  the  acquisition  of  waterways  the  Reich  acquires  the  right 
of  expropriation  and  the  rate-making  power  as  well  as  police 
authority  over  water  courses  and  navigation. 

The  projects  of  river  improvement  associations  in  respect 
to  the  extension  of  natural  waterways  in  the  basins  of  the 
Rhine,  the  Weser,  and  the  Elbe  shall  be  taken  over  by  the  Reich. 

Art.  98.  In  accordance  with  detailed  regulations  of  the 
National  Ministry,  advisory  councils  along  the  national  water- 
ways shall,  with  the  consent  of  the  Reichsrat,  be  established  to 
cooperate  in  matters  pertaining  to  waterways. 


196       NEW  CONSTITUTIONS  OF  EUROPE 

Art.  99.  On  national  waterways  charges  may  be  made  only 
for  such  construction,  improvements,  and  other  public  works 
as  are  intended  for  the  facilitation  of  traffic.  They  must  not 
exceed,  in  the  case  of  state  or  municipal  works,  the  costs  incurred 
for  construction  and  maintenance.  Construction  and  mainte- 
nance costs  for  public  works  which  are  not  intended  exclusively 
for  the  facilitation  of  traffic  but  also  for  the  promotion  of  other 
ends  may  be  defrayed  only  in  a  proportionate  ratio  by  naviga- 
tion charges.  Interest  and  sinking-fund  charges  for  the  capital 
expended  shall  be  regarded  as  construction  costs. 

The  provisions  of  the  preceding  paragraph  shall  apply  to 
charges  levied  for  artificial  waterways  as  well  as  for  public  works 
in  connection  therewith  and  in  harbors. 

In  respect  to  inland  navigation,  the  total  cost  of  a  waterway, 
a  river  basin,  or  a  system  of  waterways  may  be  taken  as  the 
basis  for  computing  navigation  charges. 

These  provisions  shall  also  apply  to  timber-rafting  on  naviga- 
ble waterways. 

The  Reich  alone  may  levy  on  foreign  ships  and  their  cargoes 
other  or  higher  charges  than  on  German  ships  and  their  cargoes. 

For  the  procurement  of  funds  for  the  maintenance  and  exten- 
sion of  the  German  system  of  waterways,  the  Reich  may  also  by 
law  levy  contributions  on  shipping  interests  in  other  ways. 

Art.  100.  In  order  to  cover  the  costs  of  maintenance  and 
construction  of  inland  waterways,  any  person  who  profits  from 
the  construction  of  dams  otherwise  than  by  navigation  may  by 
national  law  be  called  upon  to  contribute,  if  more  than  one  state 
shares  in,  or  if  the  Reich  bears,  the  cost  of  the  work. 

Art.  101.  It  shall  be  the  duty  of  the  Reich  to  acquire  as  its 
own  property  and  to  administer  all  aids  to  navigation,  in  par- 
ticular lighthouses,  lightships,  buoys,  floats,  and  beacons.  After 
such  acquisition,  aids  to  navigation  may  be  constructed  or 
extended  only  by  the  Reich  or  with  its  consent. 

SECTION   VII 

ADMINISTRATION  or  JUSTICE 

Art.  102.  Judges  are  independent  and  responsible  only  to 
the  law. 

Art.  103.  Ordinary  jurisdiction  shall  be  exercised  by  the 
national  court  and  by  the  state  courts. 

Art.  104.     Judges  of  ordinary  jurisdiction  shall  be  appointed 


GERMANY  197 

for  life.  Against  their  will  they  may  be  temporarily  or  perma- 
nently removed  from  office  or  transferred  to  another  position 
or  retired  only  by  a  judicial  decision  and  only  for  reasons  and 
according  to  forms  prescribed  by  law.  Legislation  may  fix  age 
limits  at  which  judges  may  be  retired. 

Temporary  removal  from  office  which  may  take  place  accord- 
ing to  law  shall  not  be  affected  by  this  provision. 

In  case  of  a  change  in  the  organization  of  the  courts  or  of 
their  judicial  districts,  the  state  judicial  administration  may 
provide  for  involuntary  transfers  to  another  court  or  for  re- 
movals from  office,  but  only  with  the  payment  of  full  salary. 

These  provisions  shall  not  apply  to  commerce  judges,  petty 
magistrates,  or  jurors. 

Art.  105.  Extraordinary  courts  are  prohibited.  No  one 
may  be  withdrawn  from  the  jurisdiction  of  his  legally  estab- 
lished court.  Provisions  of  law  relating  to  military  courts  and 
courts-martial  are  not  hereby  affected.  Military  courts  of  honor 
are  abolished. 

Art.  106.  Military  jurisdiction  is  abolished  except  in  time 
of  war  and  on  board  war  vessels.  Detailed  regulations  shall 
be  prescribed  by  national  law. 

Art.  107.  There  shall  be  administrative  courts  in  the  Reich 
and  in  the  states,  as  provided  by  law,  for  the  protection  of  in- 
dividuals against  ordinances  and  decrees  of  the  administrative 
authorities. 

Art.  108.  A  Supreme  Judicial  Court  shall  be  established  for 
the  German  Reich  in  accordance  with  a  national  law. 


CHAPTER  II 
FUNDAMENTAL  RIGHTS  AND  DUTIES  OF  GERMANS 

SECTION  I 
THE  INDIVIDUAL 

Art.  109.     All  Germans  are  equal  before  the  law. 

Men  and  women  have  in  principle  the  same  civil  rights  and 
duties. 

Privileges  or  discriminations  in  public  law  based  upon  birth 
or  rank  are  abolished.  Titles  of  nobility  are  regarded  only  as 
part  of  a  name  and  may  no  longer  be  conferred. 


198       NEW  CONSTITUTIONS  OF  EUROPE 

Titles  may  be  conferred  only  if  they  designate  an  office  or  a 
profession;  academic  rank  is  not  hereby  affected. 

The  state  (Staat)  may  not  confer  orders  and  decorations. 

No  German  may  accept  titles  or  orders  from  a  foreign  govern- 
ment. 

Art.  110.  Citizenship  in  the  Reich  and  in  the  states  shall  be 
acquired  and  lost  in  accordance  with  the  provisions  of  a  national 
law. 

Every  citizen  of  a  state  is  at  the  same  time  a  citizen  of  the 
Reich. 

Every  German  shall  have  in  every  state  of  the  Reich  equal 
rights  and  duties  with  the  citizens  of  that  state. 

Art.  111.  All  Germans  shall  enjoy  freedom  of  movement 
throughout  the  whole  Reich.  Everyone  shall  have  the  right  to 
sojourn  and  settle  in  any  place  he  pleases,  to  acquire  property, 
and  to  carry  on  any  gainful  occupation.  Restrictions  require  a 
national  law. 

Art.  112.  Every  German  has  the  right  to  emigrate  to  non- 
German  countries.  Emigration  may  be  restricted  only  by  a 
national  law. 

All  German  citizens  within  and  without  the  boundaries  of 
the  Reich  have  the  right  of  protection  by  the  Reich  against 
foreign  countries. 

No  German  may  be  extradited  for  prosecution  or  punishment 
by  a  foreign  government. 

Art.  113.  The  foreign  language  parts  of  the  population  of 
the  Reich  may  not  be  interfered  with  by  legislative  or  ad- 
ministrative action  in  their  free  racial  development,  espe- 
cially in  the  use  of  their  mother  tongue  in  education,  as  well  as 
in  the  communal  administration  and  the  administration  of 
justice. 

Art.  114.  Liberty  of  the  person  is  inviolable.  A  restriction 
upon,  or  deprivation  of,  personal  liberty,  may  not  be  imposed 
by  public  authority  except  by  law. 

Persons  who  have  been  deprived  of  their  liberty  must  be  in- 
formed no  later  than  the  following  day  by  what  authority, 
and  upon  what  grounds,  the  deprivation  of  liberty  was  ordered; 
without  delay  they  shall  have  the  opportunity  to  lodge  objec- 
tions against  such  deprivation  of  liberty. 

Art.  115.  The  dwelling  of  every  German  is  his  sanctuary 
and  is  inviolable.  Exceptions  may  be  imposed  only  by  au- 
thority of  law. 


GERMANY  199 

Art.  116.  An  act  may  be  punishable  only  if  the  penalty  was 
fixed  by  law  before  the  act  was  committed. 

Art.  117.  Secrecy  of  postal,  telegraphic,  and  telephonic 
communication  is  inviolable.  Exceptions  may  be  permitted 
only  by  a  national  law. 

Art.  118.  Every  German  has  the  right  within  the  limits  of 
the  general  laws,  to  express  his  opinion  orally,  in  writing,  in 
print,  pictorially,  or  in  any  other  way.  No  circumstance  arising 
out  of  his  work  or  employment  shall  hinder  him  in  the  exercise 
of  this  right,  and  no  one  shall  discriminate  against  him  if  he 
makes  use  of  such  right. 

No  censorship  shall  be  established,  but  exceptional  provisions 
may  be  made  by  law  for  cinematographs.  Moreover,  legal 
measures  are  permissible  for  the  suppression  of  indecent  and  ob- 
scene literature,  as  well  as  for  the  protection  of  youth  at  public 
plays  and  exhibitions. 

SECTION  n 
COMMUNITY  LIFE 

Art.  119.  Marriage,  as  the  foundation  of  family  life  and  of 
the  preservation  and  increase  of  the  nation,  stands  under  the 
special  protection  of  the  constitution.  It  shall  rest  upon  the 
equality  of  rights  of  both  sexes. 

It  shall  be  the  duty  of  the  state  (Staat)  and  of  the  municipali- 
ties to  maintain  the  purity,  health,  and  social  welfare  of  the 
family.  Families  of  many  children  shall  have  the  right  to  com- 
pensatory public  assistance. 

Maternity  shall  have  the  right  to  the  protection  and  public 
assistance  of  the  state. 

Art.  120.  The  education  of  their  children  for  physical,  in- 
tellectual, and  social  efficiency  is  the  highest  duty  and  natural 
right  of  parents,  whose  activities  shall  be  supervised  by  the 
political  community. 

Art.  121.  Illegitimate  children  shall  be  given  by  law  the 
same  opportunities  tor  their  physical,  intellectual,  and  social 
development  as  legitimate  children.  • 

Art.  122.  Youth  shall  be  protected  against  exploitation  as 
well  as  against  moral,  spiritual,  or  physical  neglect.  The  state 
(Staat)  and  the  municipalities  shall  make  the  necessary  pro- 
visions. 

Protective  measures  by  way  of  compulsion  may  be  instituted 
only  by  authority  of  law. 


200       NEW  CONSTITUTIONS  OF  EUROPE 

Art.  123.  All  Germans  have  the  right  to  assemble  peaceably 
and  unarmed  without  notice  or  special  permission. 

By  national  law  notice  may  be  required  for  meetings  in  the 
open  air,  and  they  may  be  prohibited  in  case  of  immediate  dan- 
ger to  the  public  safety. 

Art.  124.  All  Germans  have  the  right  to  form  societies  or 
associations  for  purposes  not  prohibited  by  the  criminal  code. 
This  right  may  not  be  limited  by  preventive  regulations.  The 
same  provision  applies  to  religious  societies  and  associations. 

Every  association  has  the  right  to  incorporate  according  to 
the  provisions  of  the  civil  code.  Such  right  may  not  be  denied 
to  an  association  on  the  ground  that  its  purpose  is  political, 
social,  or  religious. 

Art.  125.  Freedom  and  secrecy  of  voting  are  guaranteed. 
Details  shall  be  prescribed  by  the  election  laws. 

Art.  126.  Every  German  has  the  right  to  address  in  writing 
petitions  or  complaints  to  the  competent  authorities  or  to  repre- 
sentative bodies.  This  right  may  be  exercised  by  individuals 
as  well  as  by  groups. 

Art.  127.  Municipalities  and  groups  of  municipalities  have 
the  right  of  local  autonomy  within  the  limitations  of  the 
laws. 

Art.  128.  All  citizens  without  discrimination  shall  be  eligible 
for  public  office  in  accordance  with  the  laws  and  their  capacities 
and  merits. 

All  exceptional  provisions  in  respect  to  female  officials  shall 
be  abolished. 

The  principles  governing  official  relationships  shall  be  regu- 
lated by  national  law. 

Art.  129.  Officials  shall  be  appointed  for  life  except  as 
otherwise  provided  by  law.  Pensions  and  provision  for  sur- 
viving dependents  shall  be  regulated  by  law.  Duly  acquired 
rights  of  officials  shall  be  inviolable.  Lawful  salary  claims  of 
officials  may  be  established  by  legal  process. 

Officials  may  be  temporarily  removed  from  office,  provision- 
ally or  permanently  retired,  or  transferred  to  another  position 
at  a  smaller  salary,  only  for  reasons  and  according  to  forms 
provided  by  law. 

In  case  of  disciplinary  punishment  a  mode  of  redress  and  the 
opportunity  for  reconsideration  shall  be  open. 

Entries  upon  the  service  records  of  an  official  of  facts  un- 
favorable to  him  shall  be  taken  into  consideration  only  after  he 


GERMANY  201 

has  been  given  an  opportunity  to  be  heard  in  respect  to  them. 
Officials  shall  have  a  right  to  inspect  their  service  records. 

The  inviolability  of  duly  acquired  rights  and  the  right  of 
resort  to  legal  process  for  lawful  salary  claims  are  especially 
guaranteed  to  professional  soldiers.  Their  status  shall  in  other 
respects  be  regulated  by  national  law. 

Art.  130.  Officials  are  servants  of  the  whole  community 
and  not  of  a  party. 

All  officials  shall  be  guaranteed  freedom  of  political  opinion 
and  freedom  of  association. 

Officials  shall  receive  special  official  representation  according 
to  detailed  provisions  of  national  law. 

Art.  131.  If  an  official  in  the  exercise  of  the  public  authority 
vested  in  him  be  guilty  of  a  breach  of  his  official  duty  toward  a 
third  party,  responsibility  therefor  shall  attach  primarily  to 
the  state  or  to  the  public  body  in  whose  service  the  official  is. 
The  right  of  redress  against  the  officer  is  reserved.  The  ordi- 
nary legal  process  shall  not  be  denied. 

The  competent  legislative  authority  shall  make  detailed  regu- 
lations. 

Art.  132.  It  is  the  duty  of  every  German,  in  accordance  with 
the  laws,  to  accept  honorary  office. 

Art.  133.  It  is  the  duty  of  all  citizens  in  accordance  with  the 
laws,  to  perform  personal  service  for  the  state  (Staat)  and  the 
municipalities. 

Military  duty  shall  be  regulated  in  accordance  with  the  pro- 
visions of  the  laws  of  national  defense.  These  laws  shall  deter- 
mine also  to  what  extent  certain  fundamental  rights  may  be 
denied  to  members  of  the  armed  forces  in  order  to  assure  the 
performance  of  their  duties  and  the  maintenance  of  discipline. 

Art.  134.  All  citizens  without  discrimination  shall  in  propor- 
tion to  their  means  contribute  to  all  public  burdens  in  accord- 
ance with  the  laws. 

SECTION  III 
RELIGION  AND  RELIGIOUS  ASSOCIATIONS 

Art.  135.  All  inhabitants  of  the  Reich  shall  enjoy  complete 
liberty  of  belief  and  conscience.  The  peaceful  exercise  of  reli- 
gious worship  shall  be  guaranteed  by  the  constitution  and  is 
under  the  protection  of  the  state  (Staat).  General  legislation 
shall  not  be  affected  by  this  provision. 


202       NEW  CONSTITUTIONS  OF  EUROPE 

Art.  136.  Civil  and  political  rights  and  duties  shall  be 
neither  conditioned  upon,  nor  restricted  by,  the  exercise  of  re- 
ligious freedom. 

The  enjoyment  of  civil  and  political  rights  as  well  as  eligibility 
to  public  office  shall  be  independent  of  religious  belief. 

No  one  shall  be  compelled  to  disclose  his  religious  convictions. 
The  authorities  have  the  right  to  inquire  into  a  person's  member- 
ship in  a  religious  association  only  in  so  far  as  rights  and  duties 
are  dependent  thereon,  or  in  so  far  as  may  be  required  by  a 
legally  instituted  census. 

No  one  may  be  compelled  to  be  present  at  any  religious  act 
or  ceremony  or  to  take  part  in  religious  exercises  or  to  use  any 
form  of  religious  oath. 

Art.  137.     There  is  no  state  church  (Staatskirche). 

Freedom  of  assembly  in  religious  association  is  guaranteed. 
No  restriction  shall  be  placed  upon  the  union  of  religious  asso- 
ciations within  the  territory  of  the  Reich. 

Every  religious  association  shall  direct  and  administer  its 
affairs  without  interference,  within  the  limitations  of  the  law 
applicable  to  all.  It  shall  fill  its  own  offices  without  assistance 
from  the  state  (Staat)  or  local  authorities. 

Religious  associations  have  the  right  to  incorporate  according 
to  the  general  provisions  of  the  civil  code. 

Religious  associations  shall,  to  the  extent  that  they  were 
formerly,  remain  public  corporations.  The  same  rights  may  be 
accorded  to  other  religious  associations  if,  by  their  constitution 
and  the  number  of  their  members,  they  give  assurance  of  per- 
manence. If  several  of  these  public  corporate  religious  associa- 
tions combine  in  a  union,  this  union  shall  also  be  a  public  corpor- 
ation. 

Religious  associations  which  are  public  corporations  are  en- 
titled to  levy  taxes  on  the  basis  of  the  civil  tax  lists  in  accordance 
with  provisions  of  the  laws  of  the  states. 

Societies  which  aim  at  mutual  cultivation  of  a  Weltanschauung 
shall  be  in  a  status  similar  to  that  of  religious  associations. 

So  far  as  the  execution  of  these  provisions  requires  further 
regulation,  it  shall  be  provided  by  legislation  of  the  states. 

Art.  138.  Public  grants  to  religious  associations  by  law, 
contract,  or  special  legal  title  may  be  redeemed  by  legislation  of 
the  states.  The  general  principles  for  this  shall  be  established 
by  the  Reich. 

The  property  and  other  rights  of  religious  associations  and 


GERMANY  203 

religious  unions  in  their  cultural,  educational,  and  social  wel- 
fare institutions,  foundations,  and  other  funds  shall  be  guaran- 
teed. 

Art.  139.  Sundays  and  holidays  recognized  by  the  state 
(Staat)  remain  protected  by  law  as  days  of  rest  and  spiritual 
uplift. 

Art.  140.  Necessary  free  time  shall  be  accorded  to  the 
members  of  the  armed  forces  for  the  fulfilment  of  their  religious 
duties. 

Art.  141.  So  far  as  there  is  need  for  divine  worship  and  spir- 
itual ministration  in  the  army,  hospitals,  penal  establishments, 
or  other  public  institutions,  religious  associations  shall  be  ad- 
mitted for  the  performance  of  religious  offices  without  the 
exercise  of  any  compulsion. 

SECTION  rv 
EDUCATION  AND  SCHOOLS 

Art.  142.  Art,  science,  and  instruction  in  them  are  free.  The 
state  (Staat)  guarantees  their  protection  and  participates  in  their 
promotion. 

Art.  143.  The  education  of  youth  shall  be  provided  for 
through  public  institutions.  The  Reich,  the  states,  and  the 
municipalities  shall  cooperate  in  their  organization. 

The  training  of  teachers  shall  be  uniformly  regulated  for  the 
Reich  according  to  the  principles  which  apply  generally  to 
higher  education. 

The  teachers  in  public  schools  shall  have  the  rights  and  duties 
of  state  officials. 

Art.  144.  The  entire  school  system  shall  be  under  the  super- 
vision of  the  state;  the  latter  may  cause  the  municipalities  to 
participate  therein.  The  supervision  of  schools  shall  be  carried 
on  by  officials  mainly  occupied  with  this  duty  and  technically 
trained. 

Art.  145.  Compulsory  education  shall  be  universal.  For 
this  purpose  the  elementary  school  with  at  least  eight  school 
years,  followed  by  the  continuation  school  up  to  the  completion 
of  the  eighteenth  year,  shall  serve  primarily.  Instruction  and 
school  supplies  shall  be  free  in  elementary  and  continuation 
schools. 

Art.  146.  The  public  school  system  shall  be  organized  ac- 
cording to  a  general  plan.  The  intermediate  and  higher  school 


204       NEW  CONSTITUTIONS  OF  EUROPE 

system  shall  be  developed  on  the  basis  of  an  elementary  school 
common  to  all.  This  development  shall  be  governed  by  the 
varying  requirements  of  vocations;  and  the  admission  of  a  child 
to  a  particular  school  shall  be  governed  by  his  ability  and  apti- 
tude and  not  by  the  economic  and  social  position  or  the  religious 
belief  of  his  parents. 

Nevertheless,  within  the  municipalities,  upon  the  request  of 
those  persons  having  the  right  to  education,  elementary  schools 
of  their  own  religious  belief  or  of  their  Weltanschauung  shall  be 
established,  provided  that  an  organized  school  system  in  the 
sense  of  Paragraph  1  is  not  thereby  interfered  with.  The  wishes 
of  those  persons  having  the  right  to  education  shall  be  considered 
so  far  as  possible.  Detailed  regulations  shall  be  prescribed  by 
state  legislation  on  the  basis  of  a  national  law. 

To  enable  those  in  poor  circumstances  to  attend  secondary 
and  higher  schools,  the  Reich,  the  states,  and  the  municipalities 
shall  provide  public  funds,  especially  educational  allowances 
for  the  parents  of  children  who  are  considered  qualified  for  fur- 
ther education  in  intermediate  and  higher  schools  until  the  com- 
pletion of  such  education. 

Art.  147.  Private  schools  as  a  substitute  for  public  schools 
shall  require  the  approval  of  the  state  (Staat)  and  shall  be 
subject  to  the  laws  of  the  states  (Lander) .  Such  approval 
shall  be  granted  if  the  standard  of  the  private  schools  in  their 
curricula  and  equipment,  as  well  as  in  the  scientific  training  of 
their  teachers,  does  not  fall  below  that  of  the  public  schools, 
and  if  no  discrimination  against  pupils  on  account  of  the  eco- 
nomic standing  of  their  parents  is  fostered.  Such  approval  shall 
be  denied  if  the  economic  and  legal  status  of  the  teachers  is  not 
sufficiently  safeguarded. 

Private  elementary  schools  shall  be  established  only  if,  for  a 
minority  of  those  persons  having  a  right  to  education  whose 
wishes  must  be  taken  into  consideration  according  to  Article  146, 
Paragraph  2,  there  is  in  the  municipality  no  public  elementary 
school  of  their  religious  belief  or  of  their  Weltanschauung,  or  if 
the  educational  administration  recognizes  a  special  pedagogical 
interest. 

Private  preparatory  schools  are  abolished. 

The  existing  laws  shall  continue  in  force  for  private  schools 
which  do  not  serve  as  substitutes  for  public  schools. 

Art.  148.  In  all  schools  effort  shall  be  made  to  develop  moral 
education,  civic  sentiments,  and  personal  and  vocational  effi- 


GERMANY  205 

ciency  in  the  spirit  of  the  German  national  character  and  of 
international  conciliation. 

In  the  instruction  in  the  public  schools  care  shall  be  taken 
not  to  offend  the  sensibilities  of  those  of  contrary  opinions. 

Civic  education  and  manual  training  shall  be  part  of  the  cur- 
ricula of  the  schools.  Every  pupil  shall  at  the  end  of  his  obliga- 
tory schooling  receive  a  copy  of  the  constitution. 

The  Reich,  the  states,  and  the  municipalities  shall  foster 
popular  education,  including  people's  institutes. 

Art.  149.  Religious  instruction  shall  be  part  of  the  regular 
school  curriculum  with  the  exception  of  non-sectarian  (secular) 
schools.  Such  instruction  shall  be  regulated  by  the  school  laws. 
Religious  instruction  shall  be  given  in  harmony  with  the  funda- 
mental principles  of  the  religious  association  concerned  without 
prejudice  to  the  right  of  supervision  by  the  state  (Staat). 

Teachers  shall  give  religious  instruction  and  conduct  church 
ceremonies  only  upon  a  declaration  of  their  willingness  to  do  so; 
participation  in  religious  instruction  and  in  church  celebrations 
and  acts  shall  depend  upon  a  declaration  of  willingness  by  those 
who  control  the  religious  education  of  the  child. 

Theological  faculties  in  institutions  of  higher  learning  shall  be 
maintained. 

Art.  150.  Artistic,  historical,  and  natural  monuments  as  well 
as  landscapes  enjoy  the  protection  and  care  of  the  state  (Staat). 

It  shall  be  the  duty  of  the  Reich  to  prevent  the  removal  of 
German  artistic  treasures  to  foreign  countries. 


SECTION  v 
ECONOMIC  LIFE 

Art.  151.  The  organization  of  economic  life  must  conform 
to  the  principles  of  justice  to  the  end  that  all  may  be  guaranteed 
a  decent  standard  of  living.  Within  these  limits  the  economic 
liberty  of  the  individual  shall  be  assured. 

Legal  compulsion  is  permissible  only  to  safeguard  threatened 
rights  or  to  serve  the  purpose  of  promoting  an  overwhelming 
public  interest. 

Freedom  of  commerce  and  industry  shall  be  guaranteed  by 
national  laws. 

Art.  152.  In  economic  transactions  freedom  of  contract 
shall  prevail  in  accordance  with  the  law. 


206       NEW  CONSTITUTIONS  OF  EUROPE 

Usury  is  prohibited.  Legal  transactions  which  are  contrary 
to  public  policy  are  null  and  void. 

Art.  153.  Property  shall  be  guaranteed  by  the  constitution. 
Its  nature  and  limits  shall  be  prescribed  by  law. 

Expropriation  shall  take  place  only  for  the  general  good  and 
only  on  the  basis  of  law.  It  shall  be  accompanied  by  payment 
of  just  compensation  unless  otherwise  provided  by  national  law. 
In  case  of  dispute  over  the  amount  of  compensation  recourse  to 
the  ordinary  courts  shall  be  permitted,  unless  otherwise  provided 
by  national  law.  Expropriation  by  the  Reich  over  against  the 
states,  municipalities,  and  associations  serving  the  public  welfare 
may  take  place  only  upon  the  payment  of  compensation. 

Property  imposes  obligations.  Its  use  by  its  owner  shall  at 
the  same  time  serve  the  public  good. 

Art.  154.  The  right  of  inheritance  shall  be  guaranteed  ac- 
cording to  the  provisions  of  the  civil  code. 

The  share  of  the  state  in  estates  shall  be  determined  by  law. 

Art.  155.  The  distribution  and  use  of  the  soil  shall  be  con- 
trolled by  the  state  in  such  a  manner  as  to  prevent  abuse  and  to 
promote  the  object  of  assuring  to  every  German  a  healthful 
habitation  and  to  all  German  families,  especially  those  with 
many  children,  homesteads  for  living  and  working  that  are 
suitable  to  their  needs.  Discharged  soldiers  shall  receive 
special  consideration  in  the  homestead  law  that  is  to  be 
drafted. 

Landed  property  the  acquisition  of  which  is  necessary  for  the 
satisfaction  of  the  demand  for  dwellings,  for  the  promotion  of 
colonization  and  reclamation,  or  for  the  improvement  of  agricul- 
ture may  be  expropriated.  Entailments  shall  be  abolished. 

The  cultivation  and  use  of  the  soil  shall  be  the  duty  of  its 
owner  toward  the  community.  An  increase  in  the  value  of  land 
which  accrues  without  the  application  of  labor  or  capital  to  the 
property  shall  inure  to  the  benefit  of  all. 

All  natural  resources  of  the  soil  and  all  economically  useful 
forces  of  nature  shall  be  under  the  supervision  of  the  state  (Staat} . 
Private  royalties  shall  by  law  be  transferred  to  the  state  (Staat). 

Art.  156.  The  Reich  may  by  law,  without  prejudicing  the 
right  of  compensation,  and  with  due  application  of  the  provisions 
in  force  with  regard  to  expropriation,  transfer  to  public 
ownership  private  economic  enterprises  suitable  for  socialization. 
The  Reich  itself  may  participate  or  may  cause  the  states  or 
municipalities  to  share  in  the  management  of  economic  enter- 


GERMANY  207 

prises  and  associations,  or  may  in  any  other  manner  assure  to 
itself  a  determining  influence  therein. 

Moreover,  in  case  of  pressing  need,  the  Reich  may,  in  the  in- 
terest of  collectivism,  combine  by  law,  on  a  basis  of  administra- 
tive autonomy,  economic  enterprises  and  associations,  in  order  to 
secure  the  cooperation  of  all  human  elements  of  production,  to 
give  to  employers  and  employees  a  share  in  management,  and 
to  regulate  the  manufacture,  production,  distribution,  use,  and 
prices,  as  well  as  the  import  and  export,  of  economic  goods  upon 
collectivist  principles. 

Producing  and  consuming  cooperative  societies,  or  associations 
thereof,  shall  upon  their  request  be  brought  into  the  collectivist 
system  with  due  regard  for  their  constitution  and  peculiarities. 

Art.  157.  Labor  shall  be  under  the  special  protection  of  the 
Reich. 

The  Reich  shall  adopt  a  uniform  labor  code. 

Art.  158.  Intellectual  labor,  rights  of  authors,  inventors,  and 
artists  shall  enjoy  the  protection  and  care  of  the  Reich. 

Recognition  of,  and  protection  for,  the  products  of  German 
intellect,  art,  and  technical  science  shall  also  be  secured  in  for- 
eign countries  by  international  agreements. 

Art.  159.  For  the  defense  and  amelioration  of  conditions  of 
labor  and  of  economic  life,  freedom  of  association  is  guaranteed 
to  everyone  and  to  all  professions.  All  agreements  and  provi- 
sions which  attempt  to  limit  this  freedom  or  seek  to  hinder  its 
exercise  are  illegal. 

Art.  160.  Any  person  who  stands  in  a  service  or  work  re- 
lationship as  employee  or  worker  shall  have  the  right  to  such 
free  time  as  is  necessary  for  the  exercise  of  his  civic  rights  and, 
in  so  far  as  the  business  in  which  he  is  engaged  is  not  thereby 
seriously  interfered  with,  for  the  performance  of  the  public  hon- 
orary official  duties  assigned  to  him.  The  extent  to  which  his 
claim  to  compensation  shall  be  recognized  will  be  determined  by 

law. 

Art.  161.  The  Reich  shall,  with  the  controlling  participation 
of  the  insured,  establish  a  comprehensive  scheme  of  insurance 
for  the  conservation  of  health  and  of  the  capacity  to  work,  for 
the  protection  of  maternity,  and  for  the  amelioration  of  the 
economic  consequences  of  old  age,  infirmity,  and  the  changing 
circumstances  of  life. 

Art.  162.  The  Reich  shall  endeavor  to  secure  international 
regulation  of  the  legal  status -of  workers  to  the  end  that  the  en- 


208       NEW  CONSTITUTIONS  OF  EUROPE 

tire  working  class  of  the  world  may  enjoy  a  universal  minimum 
of  social  rights. 

Art.  163.  Every  German  shall,  without  prejudice  to  his 
personal  freedom,  be  under  the  moral  duty  to  use  his  intellectual 
and  physical  capacity  as  may  be  demanded  by  the  general  wel- 
fare. 

Every  German  shall  be  given  an  opportunity  to  gain  a  living 
by  productive  work.  In  so  far  as  a  suitable  occupation  cannot 
be  found  for  him,  provision  shall  be  made  for  his  necessary 
maintenance.  Detailed  regulations  shall  be  prescribed  by  spe- 
cial national  laws. 

Art.  164.  The  independent  middle  class  in  agriculture,  in- 
dustry, and  commerce  shall  be  benefited  by  legislation  and 
administration  and  shall  be  protected  against  exploitation  and 
oppression. 

Art.  165.  Workers  and  employees  shall  be  called  upon  to 
cooperate  in  common  with  employers,  and  on  an  equal  footing, 
in  the  regulation  of  salaries  and  working  conditions,  as  well  as 
in  the  entire  field  of  the  economic  development  of  the  forces  of 
production.  The  organizations  on  both  sides  and  their  agree- 
ments shall  be  recognized. 

Workers  and  employees  shall,  for  the  purpose  of  looking  after 
their  economic  and  social  interests,  be  given  legal  representation 
in  Factory  Workers  Councils,  as  well  as  in  District  Workers 
Councils  organized  on  the  basis  of  economic  areas  and  in  a 
Workers  Council  of  the  Reich. 

District  Workers  Councils  and  the  Workers  Council  of  the 
Reich  shall  meet  with  the  representatives  of  employers  and 
other  interested  population  groups  as  District  Economic  Coun- 
cils and  as  an  Economic  Council  of  the  Reich  (Reichswirtschafts- 
raf)  for  the  purpose  of  performing  economic  functions  and  for 
cooperation  in  the  execution  of  the  laws  of  socialization.  Dis- 
trict Economic  Councils  and  the  Economic  Council  of  the  Reich 
shall  be  constituted  so  that  all  important  economic  groups  shall 
be  represented  therein  proportionately  to  their  economic  and 
social  importance. 

The  National  Ministry  shall,  before  proposing  drafts  of 
politico-social  and  politico-economic  bills  of  fundamental  im- 
portance, submit  them  to  the  Economic  Council  of  the  Reich 
for  consideration.  The  Economic  Council  of  the  Reich  shall 
itself  have  the  right  to  initiate  drafts  of  such  bills.  If  the 
National  Ministry  fails  to  assent,  it  shall  nevertheless  present  the 


GERMANY  209 

draft  to  the  Reichstag  accompanied  by  an  expression  of  its  views. 
The  Economic  Council  of  the  Reich  may  designate  one  of  its 
members  to  appear  before  the  Reichstag  in  behalf  of  the  pro- 
posal. 

Powers  of  control  and  administration  may  be  conferred  upon 
Workers  and  Economic  Councils  within  the  spheres  assigned 
to  them. 

The  regulation  of  the  development  and  functions  of  Workers 
and  Economic  Councils,  as  well  as  their  relations  with  other 
administratively  autonomous  social  bodies  shall  be  exclusively  a 
matter  for  the  Reich. 


TRANSITIONAL   AND   CONCLUDING   PROVISIONS 

Art.  166.  Until  the  establishment  of  the  Supreme  Adminis- 
trative Court,  the  Supreme  Judicial  Court  shall  take  its  place 
in  the  organization  of  the  tribunal  to  examine  election  returns. 

Art.  167.  The  provisions  of  Article  18,  Paragraphs  3  to  6, 
shall  not  be  effective  until  two  years  after  the  promulgation  of 
the  constitution  of  the  Reich. 

Within  two  months  after  the  German  authorities  have  again 
taken  over  the  administration  of  the  previously  occupied  terri- 
tory, a  referendum  according  to  Article  18,  Paragraph  4,  Sen- 
tence 1,  and  Paragraph  5  shall  take  place  in  the  Prussian  prov- 
ince of  Upper  Silesia  in  order  to  ascertain  whether  a  state  of 
Upper  Silesia  shall  be  formed. 

If  the  referendum  results  affirmatively,  the  state  shall  forth- 
with be  established  without  the  necessity  of  an  additional  na- 
tional law.  Thereupon  the  following  provisions  shall  be  in 
force : 

(1)  Within  three  months  after  the  official  result  of  the  refer- 
endum is  determined,  a  state  assembly  shall  be  elected  which 
shall  be  convened  for  the  establishment  of  the  state  ministry 
and  the  drafting  of  the  state  constitution.     The  President 
of  the  Reich  shall  issue  a  writ  of  election  according  to  the 
provisions  of  the  national  election  law  and  he  shall  fix  the 
election  day. 

(2)  The  President  of  the  Reich,  in  cooperation  with  the 
state  assembly  of  Upper  Silesia,  shall  declare  when  the  state 
shall  be  considered  established. 

(3)  The  following  shall  be  citizens  of  Upper  Silesia: 

(a)  All  adult  citizens  of  the  Reich  who  on  the  date  of  the 


210       NEW  CONSTITUTIONS  OF  EUROPE 

establishment  of  the  state  of  Upper  Silesia  (No.  2)  had 
within  its  territory  their  permanent  abode  or  their  domicile 
shall  be  citizens  from  that  date; 

(b)  Other  adult  Prussian  citizens  who  were  born  within 
the  territory  of  the  province  of  Upper  Silesia  and  who  within 
one  year  after  the  establishment  of  the  state  (No.  2)  declare 
that  they  desire  to  be  citizens  of  Upper  Silesia  shall  be 
citizens  on  the  date  of  the  filing  of  such  declaration; 

(c)  All  citizens  of  the  Reich  who  by  birth,  legitimation,  or 
marriage  follow  the  citizenship  of  any  person  specified  in  (a) 
or  (b).1 

Art.  168.  Until  the  promulgation  of  the  state  law  provided 
for  by  Article  63,  but  no  later  than  July  1,  192 1,2  all  Prussian 
votes  in  the  Reichsrat  may  be  exercised  by  members  of  its 
ministry. 

Art.  169.  The  National  Ministry  shall  determine  the  time 
at  which  Article  83,  Paragraph  1,  shall  go  into  effect. 

During  a  reasonable  transition  period,  the  collection  and  ad- 
ministration of  customs  and  consumption  taxes  may  be  left  to 
the  states  at  their  request. 

Art.  170.  The  postal  and  telegraph  services  of  Bavaria  and 
Wiirttemberg  shall  be  taken  over  by  the  Reich  not  later  than 
April  1,  1921. 

If  no  agreement  upon  the  conditions  of  transfer  is  reached 
by  October  1,  1920,  the  Supreme  Judicial  Court  shall  decide. 

Until  the  transfer,  the  existing  rights  and  duties  of  Bavaria 
and  Wiirttemberg  shall  remain  in  force.  Postal  and  telegraph 
communication  with  neighboring  foreign  countries  shall,  how- 
ever, be  exclusively  regulated  by  the  Reich. 

Art.  171.  State  railways,  waterways,  and  maritime  signals 
shall  be  taken  over  by  the  Reich  no  later  than  April  1,  1921. 

If  no  agreement  upon  the  conditions  of  the  transfer  is  reached 
by  October  1,  1920,  the  Supreme  Judicial  Court  shall  decide. 

Paragraph  1  of  this  Article  was  in  the  original  constitution.  The  other  para- 
graphs were  added  by  an  amendment  adopted  November  27, 1920.  Reiehsgesetz- 
blatt,  1920,  No.  1987. 

By  Paragraph  1  no  referendum  could  be  had  upon  a  change  of  the  boundaries 
of  a  state  or  the  creation  of  a  new  state  for  a  period  of  two  years  after  the  adop- 
tion of  the  constitution,  i.  e.,  not  until  August  11,  1921.  For  a  discussion  of  this 
amendment,  see  above  pp.  65  ff. 

'Originally  this  clause  read  "Within  the  period  of  one  year."  Prussia  was 
unable  to  comply  with  the  requirement  of  Article  63.  By  a  constitutional 
amendment  of  August  6,  1920  (Reichsgesetzblatt,  1920,  No.  1565)  the  time  was 
extended  to  July  1,  1921. 


GERMANY  211 

Art.  172.  Until  the  national  law  concerning  the  Supreme 
Judicial  Court  (Staatsgerichtshof)  goes  into  effect  its  functions 
shall  be  exercised  by  a  Senate  of  seven  members,  four  of  whom 
shall  be  elected  by  the  Reichstag  and  three  by  the  National 
Court  (Reichsgericht)  from  among  its  own  members.  It  shall 
regulate  its  own  procedure. 

Art.  173.  Until  the  promulgation  of  a  national  law  provided 
for  by  Article  138,  existing  public  grants  to  religious  associations 
based  on  law,  contract,  or  special  legal  title  shall  remain  in  force. 

Art.  174.  Until  the  promulgation  of  a  national  law  provided 
for  in  Article  146,  Paragraph  2,  the  existing  legal  status  shall 
continue.  The  law  shall  give  special  consideration  to  parts 
of  the  Reich  in  which  schools  legally  exist  that  are  not  divided 
according  to  religious  beliefs. 

Art.  175 .  The  provision  of  Article  109  shall  not  be  applicable 
to  orders  and  decorations  which  may  be  awarded  for  services 
during  the  years  of  the  war,  1914-1919. 

Art.  176.  All  public  officials  and  members  of  the  armed 
forces  shall  take  oath  to  support  this  constitution.  Detailed 
regulations  shall  be  prescribed  by  an  ordinance  of  the  President 
of  the  Reich. 

Art.  177.  Wherever  in  existing  laws  provision  is  made  for 
the  taking  of  an  oath  by  the  use  of  a  religious  formula  the  oath 
shall  also  be  valid  when  taken  in  the  following  manner :  the  per- 
son taking  the  oath,  omitting  the  religious  formula,  shall  declare: 
"I  swear."  In  other  respects  the  content  of  the  oath  provided 
for  in  the  laws  shall  remain  unaffected. 

Art.  178.  The  constitution  of  the  German  Reich  of  April 
16,  1871,  and  the  law  relating  to  the  provisional  powers  of  the 
Reich  of  February  10,  1919,  are  hereby  annulled. 

The  other  laws  and  ordinances  of  the  Reich  shall  remain  in 
force  in  so  far  as  they  are  not  in  conflict  with  this  constitution. 
The  provisions  of  the  Treaty  of  Peace  signed  at  Versailles  on 
June  28,  1919,  shah*  not  be  affected  by  this  constitution.  In 
consideration  of  the  negotiations  for  the  possession  of  the 
Island  of  Heligoland,  deviation  may  be  made  from  the  provision 
of  Article  17,  Paragraph  2,  in  favor  of  its  indigenous  population.1 

Orders  legally  issued  by  public  authorities  on  the  basis  of 
previous  laws  shall  remain  in  force  until  annulled  by  subsequent 
order  or  legislative  action. 

:This  sentence  was  added  by  a  constitutional  amendment  of  August  6, 1920. 
Rrichsgesetzblatt,  1920,  No.  1566. 


212       NEW  CONSTITUTIONS  OF  EUROPE 

Art.  179.  In  so  far  as  reference  is  made  in  laws  or  ordinances 
to  regulations  and  adjustments  which  are  repealed  by  this  con- 
stitution, the  corresponding  regulations  and  adjustments  of  this 
constitution  shall  be  substituted  therefor.  Specifically  the 
Reichstag  shall  take  the  place  of  the  Constituent  Assembly,  the 
Reichsrat  shall  take  the  place  of  the  Committee  of  the  States, 
and  the  President  of  the  Reich  elected  by  virtue  of  this  constitu- 
tion shall  take  the  place  of  the  President  of  the  Reich  elected 
by  virtue  of  the  law  relating  to  the  provisional  powers  of  the 
Reich. 

The  power  vested  in  the  Committee  of  the  States,  according 
to  previous  regulations,  to  enact  ordinances  shall  be  taken  over 
by  the  National  Ministry;  for  the  enactment  of  ordinances 
the  National  Ministry  requires  the  consent  of  the  Reichsrat  in 
accordance  with  the  provisions  of  this  constitution. 

Art.  180.  Until  the  first  Reichstag  convenes  the  Constituent 
Assembly  shall  function  as  the  Reichstag.  Until  the  first  Presi- 
dent of  the  Reich  assumes  office,  the  President  of  the  Reich 
elected  by  virtue  of  the  law  relating  to  the  provisional  powers  of 
the  Reich  shall  exercise  the  functions  of  the  office. 

Art.  181.  The  German  people  has,  through  its  Constituent 
Assembly,  determined  upon  and  decreed  this  constitution.  It 
shall  go  into  effect  on  the  day  of  its  publication. 

SCHWARZBURG,  August  11,  1919 

The  President  of  the  Reich 
EBERT 

The  National  Ministry 

BAUER 

ERZBERGEH  HERMANN  MULLER  DR.  DAVID 

NOSKE  SCHMIDT  SCHLICKE  GIESBERTS 

DR.  MAYER  DR.  BELL 


CHAPTER  X 
PRUSSIA 

1.  HISTORICAL  NOTE 

IT  WAS  Prussia  that  created  the  North  German  Con- 
federation in  1866  and  the  German  Empire  in  1871.  Her 
obstacle  at  the  time  was  state  particularism.  Her  instru- 
ments were  war,  intimidation,  and  a  modicum  of  Bis- 
marckian  diplomacy.  Once  the  union  was  effected  her 
paramountcy  in  the  Empire  was  never  seriously  in  danger. 
Hers  was  three-fifths  of  the  population.  Changes  in  the 
imperial  constitution  could  be  made  and  other  important 
legislation  enacted  only  with  her  consent.  In  fact,  little 
was  done  without  her  consent;  and  practically  all  things 
were  done  at  her  behest.  For  the  King  of  Prussia  was 
German  Emperor  because  he  was  King  of  Prussia.  Herein 
lay  one  cornerstone  of  Prussian  political  supremacy.  As 
a  result,  except  for  a  negligible  period  of  time,  the  Prime 
Minister  of  Prussia  (President  of  the  Council  of  Ministers) 
and  the  Chancellor  of  the  Empire  were  always  one  and  the 
same  person.  Moreover,  this  powerful  dual  officer  was 
always  a  Prussian,  with  the  exception  of  Prince  Hohenlohe 
(1894-1900),  a  Bavarian  pre-Empire  imperialist,  and  of 
Count  von  Hertling  of  Bavaria  and  of  Prince  Max  von 
Baden,  to  whom  the  Emperor  turned  in  something  of 
desperation  toward  the  end  of  the  war. 

Federalism  it  was  that  the  Empire  enjoyed;  but  it  was 
federalism  under  the  hegemony  of  a  single  dominant  state.1 


Prussia's 
position  in 
the 

German 
Empire 


iSee  above,  pp.  62-68;  72-74. 


213 


Constitution 
of  1850 


The  revolu- 
tion of 
November, 
1918 


214       NEW  CONSTITUTIONS  OF  EUROPE 

And  the  material  prosperity  that  accrued  to  the  Empire, 
not  to  mention  the  Prussianization  of  the  imperial  army, 
served  inevitably  to  enhance  this  dominance.  Prussian 
supremacy  was  the  most  striking  characteristic  of  German 
federalism  as  compared  with  the  other  federal  systems  of 
the  world. 

When  Prussia  led  the  other  German  states  into  imperial 
union,  she  herself  was  operating  under  her  constitution  of 
January  31,  1850.  Under  this  instrument  she  continued 
to  operate.  Not  a  single  change  of  importance  was  made 
prior  to  the  opening  of  the  war.  Especially  was  the  re- 
actionary three-class  system  of  voting  preserved  in  the 
face  of  frequently  voiced  criticism  and  denunciation.  It 
was  a  stalwart  bulwark  against  the  possible  transformation 
of  democracy  from  vocal  aspiration  into  reality.  It  is 
true  that  after  three  years  of  war  (July  11, 1917)  an  impe- 
rial rescript  promised  the  abolition  of  the  three-class 
system  and  the  introduction  of  equality  of  suffrage  for  the 
next  elections.  But  the  promise  came  too  late.  Consti- 
tutional reform  in  Prussia,  as  in  the  Empire,  was  to  arrive 
by  the  avenue  of  military  defeat. 

In  November,  1918,  the  imperial  government  collapsed. 
The  revolution  in  the  Empire  was  accompanied  by  more 
or  less  distinct  revolutions  in  each  of  the  several  states. 
Because  of  her  position  in  the  Empire  the  revolution  in 
Prussia  was  practically  identical  with  the  revolution  in  the 
Empire.  The  flight  of  the  German  Emperor  was  also  the 
flight  of  the  Prussian  King.  There  was  established  in 
Berlin  not  only  a  provisional  government  of  the  Empire 
but  also  a  provisional  government  of  Prussia.  For  several 
months  these  governments  weathered  the  storms  of  revo- 
lution. In  January,  1919,  the  Prussian  provisional  govern- 
ment called  for  the  election  of  a  constituent  assembly. 
The  election  of  delegates  was  held  on  January  26,  1919, 
under  the  system  of  proportional  representation  provided 
by  the  Decree  of  November  30,  1918,  which  regulated 


PRUSSIA 


215 


elections  to  membership  in  the  constituent  assembly  of  the 
Reich.1 

The  Prussian  constituent  assembly  came  together  on 
March  5.  On  March  20  the  assembly  enacted  a  law  set- 
ting up  a  provisional  government.  Complete  power  was 
reserved  to  the  assembly  itself,  but  for  the  exercise  of  exec- 
utive power  ministers  were  provided,  each  minister  being 
directly  responsible  to  the  assembly. 

Most  of  the  German  states  proceeded  quickly  to  draft 
new  constitutions  establishing  permanent  governments  on 
a  new  legal  basis.  Some  of  them  antedated  the  procla- 
mation of  the  Constitution  of  the  German  Reich  on  Au- 
gust 11,  1919.  In  one  or  two  instances,  as  in  Bavaria  and 
Wiirttemberg,  these  hurriedly  drafted  constitutions  had 
to  be  remade  in  the  republican  form  required  by  the  na- 
tional fundamental  law. 

Almost  of  necessity,  however,  the  Prussian  constituent 
assembly  made  haste  slowly.  It  was  well-nigh  impossible 
to  establish  a  permanent  government  for  Prussia  until 
her  position  in  the  realm  had  been  predetermined.  The 
South  Germans,  the  party  of  the  Center,  and  many  of  the 
Socialists  were  strongly  opposed,  although  for  very  differ- 
ent reasons,  to  a  continuation  of  the  Prussian  hegemony.2 
On  the  one  hand,  however,  was  the  necessity  for  German 
unity  —  a  close  union  of  the  several  states.  On  the  other 
hand  was  the  ineluctable  fact  of  the  preponderating  Prus- 
sian population.  How  could  the  union  of  states  be  pre- 
served while  the  paramountcy  of  Prussia  was  weakened  or 
destroyed?  Out  of  this  dilemma  arose  the  agitation  for 
a  segmentation  of  Prussia  and  the  exaltation  of  some  of 
her  provinces  to  the  status  of  states  of  the  Reich. 


p.  172.  The  election  results  were  as  follows:  Social  Democrats,  145; 
Christian  People's  Party  (old  Center  or  Catholic  Federal),  94;  German  Demo- 
cratic Party  (old  Progressives  and  Radical  Liberals),  66;  German  National 
People's  Party  (old  Conservatives),  50;  Independent  Socialists,  24;  German 
People's  Party  (old  National  Liberals),  21;  Hanoverians,  2.  Total  402. 

*Paul  Matter,  "  La  constitution  prussienne  et  les  elections  du  20  fevrier  1921," 
Revue  des  sciences  politiques,  Vol.  44,  No.  2,  April-June,  1921,  p.  185. 


Constituent 

assembly 

elected 


Assembly 

worked 

slowly 


Decentral- 
ization in 
the  Reich 
and  in 
Prussia 


Difficulties 
of  the 
assembly 


216       NEW  CONSTITUTIONS  OF  EUROPE 

Everybody  must  have  realized,  however,  that  the  dis- 
memberment of  Prussia  within  the  Reich  would  operate 
in  the  direction  of  German  weakness,  unless  a  unitary 
state,  which  would  be  controlled  by  the  preponderant 
Prussian  population,  were  substituted  for  the  federal 
system.  An  all-powerful  Prussia  had  been  the  strength 
of  a  powerful  Empire;  a  united  Prussia  must  still  be  the 
strength  of  a  federated  Germany.  The  national  constitu- 
tion of  Weimar  probably  settled  the  unity  of  Prussia  so 
far  as  the  national  federation  was  concerned.  In  respect 
to  matters  of  strictly  state  concern  it  was  still  possible  to 
introduce  into  the  constitution  of  Prussia  as  large  an 
amount  of  decentralization  as  seemed  to  be  desirable. 
But  the  powers  of  the  central  government  of  the  realm 
were  so  large  that  this  element  of  decentralization,  even  if 
established,  could  not  be  of  enormous  importance  in  na- 
tional politics.  The  national  constitution  did  not  alter 
Prussia  as  a  unit;  of  necessity,  therefore,  there  had  to  be  a 
strong  central  government  in  Prussia  for  national  pur- 
poses. Her  relations  with  the  central  government  Prussia 
could  not  devolve  upon  her  provinces. 

Even  after  the  integrity  of  Prussia  in  the  Reich  had  been 
fairly  determined  by  the  national  constitution,  the  constit- 
uent assembly  found  it  no  easy  matter  to  draft  a  form  of 
government  adjusted  to  the  new  situation  'and  acceptable 
to  the  various  conflicting  opinions.  A  definite  draft  of  a 
constitution  was  not  presented  to  the  assembly  until 
February  25,  1920.  This  was  the  proposal  of  the  Social 
Democrats  comprising  the  largest  single  group  in  the  as- 
sembly. A  special  commission  was  appointed  to  consider 
the  proposal.  Certain  changes  were  made,  especially  in  the 
direction  of  increasing  the  powers  of  the  Staatsrat.  The 
chief  difficulty  was  encountered  in  respect  to  the  matter 
of  provincial  autonomy — a  matter  which  was  in  the  end 
left  largely  unsettled.  Apparently  the  only  concessions 
to  provincial  autonomy  are  the  provision  that  the  mem- 


PRUSSIA 


217 


bers  of  the  Staatsrat,  a  quasi  second  chamber,  shall  be 
elected  by  the  provincial  diets,  and  the  vague  and  uncer- 
tain direction  that  the  provinces  and  communes  shall 
enjoy  self-government  and  that  their  powers  of  self- 
government  may  be  increased  by  law.  In  October  the 
commission  made  its  report  and  in  November  the  assem- 
bly adopted  the  constitution  by  a  vote  of  280  to  60.  The 
constitution  was  promulgated  November  30,  1920,  two 
years  after  the  revolution  and  fifteen  months  subsequent 
to  the  promulgation  of  the  constitution  of  the  Reich.1 
The  first  election  under  the  constitution  was  held  February 
20,  1921. 


Constitution 
of  1920 
promulgated 


2.  CONSTITUTION  OF  THE  FREE  STATE  OF  PRUSSIA 
OF  NOVEMBER  30,  1920 

The  Prussian  people  by  its  Constituent  Assembly  gives  itself 
the  following  constitution,  which  is  hereby  promulgated: 

SECTION  I 
THE  STATE 

Article  1.  (1)  Prussia  is  a  republic  and  a  member  of  the 
German  Reich. 

(2)  The  consent  of  Prussia,  required  by  the  constitution  of 
the  Reich  for  territorial  alterations,  shall  be  given  by  law. 

(3)  The  Prussian  colors  are  black  and  white. 

(4)  The  language  used  in  public  business  and  negotiations 
shall  be  German. 

SECTION  II 

THE  POWERS  OF  THE  STATE 

Art.  2.  The  sovereignty  of  the  state  resides  in  the  whole 
people. 

Art.  3.  In  accordance  with  the  provisions  of  this  constitu- 
tion and  of  the  constitution  of  the  Reich,  the  people  shall  express 

^he  following  translation  was  made  for  this  volume  from  the  German  text  in 
Preussische  Gesetzsammlung,  1920,  No.  54.  A  French  version,  by  M.  Robert 
Redslob,  which  is  not  wholly  accurate,  is  to  be  found  in  Revw  du  droit  public  et 
de  la  science  politique,  Vol.  38,  No.  2,  April-May-June,  1921,  p.  196. 


218       NEW  CONSTITUTIONS  OF  EUROPE 

their  will  directly  through  popular  suffrage  (popular  initiative, 
popular  referendum,  and  popular  election)  and  indirectly 
through  the  agencies  established  by  the  constitution. 

Art.  4.  (1)  All  German  citizens,  men  and  women,  over 
twenty  years  of  age,  who  are  domiciled  in  Prussia,  are  qualified 
to  vote. 

(2)  The  right  to  vote  shall  be  universal  and  equal  and  shall 
be  exercised  secretly  and  directly.     Election  day  must  be  a 
Sunday  or  a  public  holiday. 

(3)  Detailed  regulations  shall  be  prescribed  by  law. 

Art.  5.  The  following  persons  shall  be  denied  the  right  to 
vote: 

(a)  those  who  are  under  interdiction  or  who  have  been 
placed  under  temporary  guardianship  or  are  under  tutelage 
by  reason  of  mental  incapacity; 

(b)  those  who  do  not  possess  civil  rights. 
Art.  6.     (1)  Popular  initiative  may  be  used  for: 

(a)  constitutional  amendments; 

(b)  enactment,  amendment,  or  repeal  of  laws; 

(c)  dissolution  of  the  Landtag. 

(2)  Initiative  proposals  must  be  addressed  to  the  Ministry 
of  State  and  shall  immediately  be  submitted  by  the  latter  to  the 
Landtag  with  a  statement  of  the  Ministry's  views.     A  complete 
draft  of  law  must  be  the  basis  of  an  initiative  proposal  in  cases 
(a)  and  (b).     The  initiative  proposal  shall  be  valid  only  if  it  is 
supported  in  case  (b)  by  one-twentieth  and  in  cases  (a)  and  (c) 
by  one-fifth  of  the  qualified  voters. 

(3)  An  initiative  proposal  shall  not  be  admissible  concerning 
questions  of  finance,  tax  laws,  and  salary  regulations. 

(4)  A  popular  referendum  shall  be  held  upon  an  initiative 
proposal  and  in  such  other  cases  as  are  provided  for  in  the  con- 
stitution; it  shall  be  valid  only  if  a  majority  of  the  qualified 
voters  participate  therein. 

(5)  A  popular  referendum  shall  not  be  held  if  the  Landtag 
has  adopted  the  initiative  proposal. 

(6)  Proposals  for  amendment  of  the  constitution,  or  for  a 
dissolution  of  the  Landtag  require  for  acceptance  the  consent  of 
a  majority  of  all  qualified  voters.     In  other  cases  a  simple  ma- 
jority of  the  valid  votes  polled  shall  determine.    The  vote  may 
be  only  by  "yes"  or  "no." 

(7)  The  procedure  of  popular  initiative  and  popular  referen- 
dum shall  be  regulated  by  law. 


PRUSSIA  219 

Art.  7.  The  Ministry  of  State  shall  be  the  supreme  executive 
and  directing  authority  of  the  state. 

Art.  8.  (1)  The  judicial  power  shall  be  exercised  by  inde- 
pendent courts,  subject  only  to  law. 

(2)  Judgments  shall  be  rendered  and  executed  in  the  name 
of  the  people. 

SECTION  in 
THE  LANDTAG 

Art.  9.  (1)  The  Landtag  shall  consist  of  deputies  of  the 
Prussian  people.  The  deputies  shall  be  representatives  of 
the  entire  people  and  shall  be  elected  by  them  according  to 
the  principles  of  proportional  representation. 

(2)  Qualified  voters  who  are  twenty-five  years  of  age  are  eligi- 
ble for  election. 

Art.  10.  The  deputies  shall  vote  according  to  their  inde- 
pendent convictions,  with  consideration  only  for  the  public 
wslfare;  they  shall  not  be  bound  by  orders  or  instructions. 

Art.  11.  (1)  Officials,  employees,  and  workers  of  the  state 
and  of  public  corporations  shall  not  be  required  to  obtain  leave 
to  sit  as  deputies. 

(2)  If  they  seek  election  to  the  Landtag,  leave  necessary  to 
carry  on  their  campaign  shall  be  granted  to  them. 

(3)  Payments  of  their  salaries  or  wages  shall  be  continued. 

(4)  The  above  mentioned  provisions  shall   not  affect  the 
rights  conferred  upon  religious  associations  by  Article  137  of  the 
constitution  of  the  Reich. 

Art.  12.  (1)  The  validity  of  elections  shall  be  verified  by  a 
tribunal  to  examine  election  returns  constituted  by  the  Landtag 
for  this  purpose.  It  shall  also  decide  whether  a  deputy  has  lost 
his  seat. 

(2)  The  tribunal  to  examine  election  returns  shall  consist  of 
members  of  the  Landtag,  elected  by  the  .Landtag  for  the  legisla- 
tive term,  and,  in  addition,  of  members  of  the  Superior  Ad- 
ministrative Court  (Oberverwaltungsgencht)  appointed  by  the 
presidency  of  this  Court  for  the  same  period. 

(3)  The  tribunal  to  examine  election  returns  shall  pronounce 
judgment  upon  the  basis  of  public  and  oral  sittings  by  a  quorum 
of  three  members  of  the  Landtag  and  two  judicial  members. 

(4)  Proceedings  apart  from  the  sittings  of  the  tribunal  to 
examine  election  returns  shall  be  conducted  by  one  of  the 


220       NEW  CONSTITUTIONS  OF  EUROPE 

members  appointed  from  the  Superior  Administrative  Court, 
who  shall  not  belong  to  the  above  named  tribunal  to  examine 
election  returns. 

(5)  Detailed  regulations  shall  be  prescribed  by  law. 

Art.  13.  The  Landtag  shall  be  elected  for  a  four-year  term. 
A  new  election  shall  take  place  before  the  expiration  of  this 
period. 

Art.  14.  (1)  A  dissolution  of  the  Landtag  may  take  place 
upon  its  own  motion  or  by  the  action  of  a  committee  consisting 
of  the  Minister  President  and  of  the  Presidents  of  the  Landtag 
and  of  the  Staatsrat,  or  by  popular  referendum.  A  popular 
referendum  [on  a  question  of  dissolution]  may  also  be  had  by 
resolution  of  the  Staatsrat. 

(2)  The  dissolution  of  the  Landtag  upon  its  own  motion  shall 
require  the  consent  of  a  majority  of  all  the  legal  members. 

Art.  15.  A  new  election  must  be  held  within  sixty  days  after 
a  dissolution  of  the  Landtag. 

Art.  16.  In  case  of  a  dissolution  of  the  Landtag  the  legisla- 
tive term  of  the  new  Landtag  shall  begin  on  the  day  of  the  new 
election;  in  all  other  cases  it  shall  begin  with  the  expiration  of 
the  legislative  term  of  the  old  Landtag. 

Art.  17.  (1)  The  Landtag  shall  meet  at  the  seat  of  the 
Ministry  of  State. 

(2)  After  each  new  election  the  Landtag  shall  assemble  for 
its  first  session  thirty  days  after  the  beginning  of  its  legislative 
term,  unless  the  Ministry  of  State  convokes  it  at  an  earlier 
date. 

(3)  Thereafter  the  Landtag  shall  meet  on  the  second  Tuesday 
in  November  of  each  year.     The  President  of  the  Landtag  must 
call  an  earlier  meeting,  if  the  Ministry  of  State  or  not  less  than 
one-fifth  of  the  members  of  the  Landtag  demand  it. 

(4)  The  Landtag  shall  determine  the  day  of  its  adjournment 
and  the  day  of  its  reassembly. 

Art.  18.  The  Landtag  shall  elect  its  own  President,  its  Vice- 
Presidents,  and  its  other  officers. 

Art.  19.  Between  two  sessions,  as  well  as  prior  to  the  con- 
vening of  a  newly  elected  Landtag,  the  President  and  Vice- 
Presidents  of  the  last  session  shall  carry  on  its  business. 

Art.  20.  The  President  shall  administer  all  the  business  af- 
fairs of  the  Landtag  within  the  limits  laid  down  by  the  state 
budget  law  and  with  the  powers  of  a  minister  of  state.  It  shall 
be  his  duty  to  supervise  the  work  of  all  officials  and  employees 


PRUSSIA  221 

of  the  Landtag,  to  engage  and  dismiss  all  paid  employees,  and 
also,  in  conjunction  with  the  other  officers  of  the  Landtag,  to 
appoint  and  dismiss  the  civil  service  officials  of  the  Landtag. 
He  shall  represent  the  state  in  all  legal  business  and  legal  actions 
involved  in  his  administration.  He  shall  exercise  powers  of  dis- 
cipline and  police  within  the  Landtag  building. 

Art.  21.  (1)  There  shall  be  a  quorum  of  the  Landtag  when 
a  majority  of  the  legal  membership  are  present. 

(2)  The  rules  of  procedure  of  the  Landtag  may  permit  excep- 
tions in  the  case  of  elections  held  by  it. 

Art.  22.  (1)  Resolutions  of  the  Landtag  require  a  simple 
majority  of  votes. 

(2)  Exceptions  to  this  rule  may  be  prescribed  by  law,  and  in 
the  case  of  elections  by  the  standing  orders. 

Art.  23.  Plenary  sessions  of  the  Landtag  shall  be  public. 
Upon  the  request  of  fifty  deputies,  the  Landtag  may  by  a  two- 
thirds  majority  vote  exclude  the  public  for  the  consideration  of 
special  matters  on  the  calendar.  Such  request  shall  be  dealt 
with  in  secret  session. 

Art.  24.  The  Landtag  and  each  of  its  committees  may  de- 
mand the  presence  of  every  minister.  The  ministers  and  their 
deputies  shall  have  access  to  the  sittings  of  the  Landtag  and  of 
its  committees.  They  may  speak  in  the  Landtag  at  any  time 
regardless  of  the  order  of  the  day.  They  are  subject  to  the  rul- 
ings of  the  presiding  officer. 

Art.  25.  (1)  The  Landtag  shall  have  the  right  to,  and  upon 
the  proposal  of  one-fifth  of  its  members  must,  set  up  committees 
of  investigation.  These  committees  shall  in  public  sitting  in- 
quire into  such  evidence  as  they  or  the  petitioners  consider 
necessary.  The  public  may  be  excluded  by  a  two-thirds  ma- 
jority vote.  The  rules  of  procedure  shall  regulate  their  business 
and  determine  the  number  of  their  members. 

(2)  The  courts  and  administrative  authorities  are  required 
to  submit  evidence  requested  by  these  committees;  upon  their 
demand  the  records  of  the  authorities  shall  be  laid  before 
them. 

(3)  The  provisions  of  the  criminal  code  shall  apply,  as  far  as 
may  be,  to  the  inquiries  of  committees  and  of  the  authorities  as- 
sisting them;  nevertheless,  the  secrecy  of  the  postal,  telegraph 
and  telephone  services  shall  remain  unaffected. 

Art.  26.  The  Landtag  shall  appoint  a  standing  committee 
for  the  protection  of  the  rights  of  the  representative  body  over 


222       NEW  CONSTITUTIONS  OF  EUROPE 

against  the  Ministry  of  State,  for  the  period  between  sessions, 
and  between  the  expiration  of  a  legislative  term  or  a  dissolution 
of  the  Landtag  and  the  convening  of  a  new  Landtag.  This 
committee  shall  have  the  powers  of  a  committee  of  investiga- 
tion. Its  composition  shall  be  regulated  by  the  rules  of  pro- 
cedure. 

Art.  27.  The  Landtag  may  transmit  memorials,  addressed 
to  it,  to  the  Ministry  of  State  and  may  demand  from  the  Minis- 
try information  concerning  petitions  and  remonstrances  that 
are  filed  with  it. 

Art.  28.  (1)  Members  of  the  Landtag  shall  have  the  right  of 
free  transportation  on  all  German  railways  included  within  the 
former  Prussian-Hessian  railroad  system,  as  well  as  the  right  to 
compensation.  In  addition  to  this  the  President  [of  the  Land- 
tag] shall  receive  an  allowance  for  official  expenses  during  his 
term  of  office. 

(2)  Refusal  of  compensation  shall  not  be  permitted. 

(3)  Detailed  regulations  shall  be  prescribed  by  law. 

Art.  29.  (1)  The  Landtag  shall  have  legislative  authority 
within  the  limits  prescribed  by  the  constitution;  it  shall  approve 
the  budget  of  revenues  and  expenditures ;  it  shall  determine  the 
principles  according  to  which  state  affairs  shall  be  administered, 
and  shall  supervise  their  execution.  State  treaties  (Staats- 
vertrdge)  require  the  consent  of  the  Landtag  if  such  treaties  re- 
late to  matters  within  the  scope  of  its  legislative  power. 

(2)  The  Landtag  shall  determine  its  own  rules  of  procedure 
within  the  limits  of  this  constitution. 

Art.  30.  A  resolution  by  the  Landtag  to  amend  the  constitu- 
tion shall  be  valid  only  if  at  least  two-thirds  of  the  legal  members 
are  present  and  at  least  two-thirds  of  those  present  consent. 

SECTION  IV 
THE  STAATSRAT 

Art.  31.  A  Staatsrat  shall  be  established  to  represent  the 
provinces  in  the  legislation  and  administration  of  the  state. 

Art.  32.  (1)  The  Staatsrat  shall  be  composed  of  representa- 
tives of  the  provinces.  The  following  are  recognized  as  prov- 
inces: East  Prussia,  Brandenburg,  City  of  Berlin,  Pomerania, 
the  Posen-West-Prussian  Mark,  Lower  Silesia,  Upper  Silesia,1 

1See  Article  167  of  the  constitution  of  the  German  Reich,  and  note;  see  also 
above,  pp.  65,  66. 


PRUSSIA  223 

Saxony,  Schleswig-Holstein,  Hanover,  Westphalia,  the  Rhine 
Province,  and  Hessen-Nassau. 

(2)  For  each  500,000  inhabitants  a  province  shall  be  entitled 
to  one  representative,  but  each  province  shall  have  at  least  three 
representatives  in  the  Staatsrat.     A  fraction  of  more  than 
250,000  inhabitants  shall  be  counted  as  equal  to  500,000  in- 
habitants. 

(3)  In  addition,  the  Hohenzollern  Territories  shall  have  one 
representative. 

(4)  The  number  of  representatives  from  the  provinces  shall 
be  re-determined  by  the  Ministry  of  State  after  each  general 
census  and  after  any  alterations  of  the  territory  of  the  provinces. 

Art.  33.  (1)  The  members  of  the  Staatsrat  and  their  depu- 
ties shall  be  elected  by  the  provincial  diets  (in  Berlin  by  the 
municipal  council,  in  the  Hohenzollern  Territories  and  in 
the  Posen- West-Prussian  Mark  by  the  communal  diets).  In 
the  Hohenzollern  Territories  election  shall  be  by  majority  vote; 
in  all  other  cases  according  to  the  principles  of  proportional 
representation.  All  qualified  voters  over  twenty-five  years  of 
age  who  have  been  domiciled  in  the  province  for  one  year  shall 
be  eligible  for  election. 

(2)  No  person  may  be  a  member  of  the  Landtag  and  the 
Staatsrat  at  the  same  time.     Deputies  to  the  Landtag  must  re- 
sign therefrom  upon  acceptance  of  election  to  the  Staatsrat. 
Members  of  the  Staatsrat  must  resign  therefrom'  upon  accep- 
tance of  election  to  the  Landtag. 

(3)  Members  of  the  Staatsrat  shall  exercise  the  functions  of 
their  office  until  their  successors  have  qualified. 

(4)  A  new  election  of  members  of  the  Staatsrat  shall  take 
place  immediately  after  a  new  election  of  any  provincial  diet 
(municipal  council,  communal  diet). 

Art.  34.  The  members  of  the  Staatsrat  shall  vote  according 
to  their  independent  convictions,  with  consideration  only  for  the 
public  welfare;  they  shall  not  be  bound  by  orders  or  instructions. 

Art.  35.  No  member  of  the  Staatsrat  may  at  any  time  be 
subjected  to  judicial  or  administrative  prosecution,  or  be  other- 
wise held  responsible  outside  of  the  sittings  by  reason  of  his  vote 
or  by  reason  of  any  utterances  made  in  his  official  capacity. 

Art.  36.  (1)  Officials,  employees,  and  workers  of  the  state 
and  of  public  corporations  shall  not  require  leave  in  order  to 
exercise  their  functions  as  members  of  the  Staatsrat. 

(2)  Payments  of  their  salaries  and  wages  shall  be  continued. 


224       NEW  CONSTITUTIONS  OF  EUROPE 

Art.  37.  The  Staatsrat  shall  elect  its  presiding  officer  and  its 
secretaries  and  their  deputies,  and  shall  regulate  its  order  of 
business  by  rules  of  procedure. 

Art.  38.  (1)  The  Staatsrat  shall  be  convened  for  the  first 
time  by  the  Ministry  of  State.  Thereafter  it  shall  convene  upon 
the  call  of  its  presiding  officer  as  often  as  its  business  requires. 
The  presiding  officer  shall  convene  the  Staatsrat  if  one-fifth  of 
its  members  or  all  the  representatives  of  one  province  or  the 
Ministry  of  State  demand  it. 

(2)  There  shall  be  a  quorum  of  the  Staatsrat  when  a  majority 
of  its  legal  members  are  present.     In  case  of  voting  a  simple 
majority  of  the  votes  cast  shall  decide. 

(3)  For  resolutions  of  the  Staatsrat  relating  to  Article  14,  and 
Article  42,  Paragraph  1,  there  must  be  a  recorded  vote. 

Art.  39.  (1)  Plenary  sessions  of  the  Staatsrat  shall  be  public. 
The  Staatsrat  may  by  a  two-thirds  majority  vote  exclude  the 
public  for  the  consideration  of  special  matters  on  the  calendar. 
A  request  to  exclude  the  public  shall  be  dealt  with  in  secret 
session. 

(2)  The  provisions  of  Article  24  shall  apply. 

Art.  40.  (1)  The  Staatsrat  shall  be  kept  informed  by  the 
Ministry  of  State  with  regard  to  the  conduct  of  public  business. 

(2)  Before  their  introduction  bills  must  be  submitted  by  the 
Ministry  of  State  to  the  Staatsrat  for  examination  and  criticism. 
The  Staatsrat  may  communicate  its  dissenting  opinion  in  writing 
to  the  Landtag. 

(3)  The  Staatsrat  may  submit  bills  to  the  Landtag  through 
the  Ministry  of  State. 

(4)  The  Ministry  of  State  must  consult  the  Staatsrat  or  a 
competent  committee  thereof,  before  issuing  decrees  for  the 
execution  of  laws  of  the  Reich  and  of  the  state  or  before  issuing 
general  administrative  ordinances. 

Art.  41.  The  members  of  the  Staatsrat  shall  receive  such 
compensation  for  travel  and  official  expenses  as  may  be  fixed  by 
law.  Refusal  thereof  shall  not  be  permitted. 

Art.  42.  (1)  Laws  enacted  by  the  Landtag  shall  be  subject 
to  veto  by  the  Staatsrat. 

(2)  The  veto  must  be  communicated  to  the  Ministry  of  State 
within  two  weeks  after  the  final  vote  hi  the  Landtag  and  within 
two  additional  weeks  must  be  supported  by  reasons. 

(3)  In  case  of  veto  the  law  must  be  presented  to  the  Landtag 
for  reconsideration.     If  the  Landtag  reaffirms  its  original  resolu- 


PRUSSIA  225 

tion  by  a  two-thirds  majority  vote,  this  resolution  shall  be  final. 
If,  however,  in  the  reconsideration  by  the  Landtag  only  a 
simple  majority  vote  is  obtained  for  the  original  resolution,  the 
resolution  shall  be  invalid,  unless  it  be  approved  by  a  popular 
referendum  initiated  by  the  Landtag. 

(4)  The  approval  of  the  Staatsrat  is  necessary  if  the  Landtag 
desires  to  vote  expenditures  which  are  in  excess  of  the  amounts 
proposed  or  approved  by  the  Ministry  of  State.  If  the  Staatsrat 
refuses  consent,  the  resolution  of  the  Landtag  shall  be  valid 
only  in  so  far  as  it  agrees  with  the  proposal  or  approval  of  the 
Ministry  of  State.  A  popular  referendum  shall  not  be  applicable 
in  such  circumstances. 

Art.  43.    Detailed  regulations  shall  be  prescribed  by  law. 

SECTION  v 
THE  MINISTRY  OF  STATE 

Art.  44.  The  Ministry  of  State  shall  consist  of  the  Minister 
President  and  the  ministers  of  state. 

Art.  45.  The  Landtag  shall  elect  the  Minister  President 
without  debate.  The  Minister  President  shall  appoint  the  other 
ministers  of  state. 

Art.  46.  The  Minister  President  shall  determine  the  general 
principles  of  governmental  policy  and  shall  be  responsible  for 
them  to  the  Landtag.  Within  these  principles  each  minister  of 
state  shall  independently  carry  on  the  branch  of  administration 
entrusted  to  him,  and  shall  himself  be  responsible  to  the  Land- 
tag. 

Art.  47.  (1)  The  Minister  President  shall  be  chairman  of 
the  Ministry  of  State  and  shall  conduct  its  business. 

(2)  The  Ministry  of  State  shall  determine  the  jurisdiction  of 
each  minister  of  state  in  so  far  as  this  has  not  been  regulated 
by  legislative  enactment.     Such  determinations  shall  be  im- 
mediately submitted  to  the  Landtag  and  must  be  altered  or  re- 
pealed at  the  request  of  the  Landtag. 

(3)  Differences  of  opinion  in  respect  to  matters  pertaining 
to  the  scope  of  the  authority  of  the  several  ministers  of  state 
must  be  submitted  to  the  Ministry  of  State  for  consideration  and 
decision. 

Art.  48.  The  ministers  of  state  shall  be  entitled  to  re- 
muneration. Pensions  and  provision  for  dependent  survivors 
shall  be  determined  by  special  law. 


226       NEW  CONSTITUTIONS  OF  EUROPE 

Art.  49.  The  Ministry  of  State  shall  represent  the  state  in 
external  affairs. 

Art.  50.  The  Ministry  of  State  shall  pass  on  bills  which  shall 
be  presented  to  the  Landtag. 

Art.  51.  The  Ministry  of  State  shall  issue  ordinances  for  the 
execution  of  the  laws  in  so  far  as  this  duty  is  not  imposed  upon 
individual  ministers  of  state  by  law. 

Art.  52.  The  Ministry  of  State  shall  appoint  all  officials  who 
are  directly  under  its  jurisdiction. 

Art.  53.  The  Ministry  of  State  shall  appoint  delegates  to 
the  Reichsrat  except  when  they  are  appointed  by  the  provincial 
administrations  as  provided  for  by  Article  63  of  the  constitution 
of  the  Reich. 

Art.  54.  (1)  The  Ministry  of  State  shall  exercise  the  pardon- 
ing power  in  the  name  of  the  people. 

(2)  In  the  case  of  a  minister  who  has  been  condemned  for 
malfeasance  in  office  this  power  may  be  exercised  only  at  the 
instance  of  the  Landtag. 

(3)  General  amnesties  or  discontinuance  of  prosecutions  in 
special  classes  of  criminal  cases,  or  in  a  single  pending  criminal 
case,  may  take  place  only  upon  the  basis  of  a  law. 

Art.  55.  If  the  maintenance  of  public  safety  or  the  meeting 
of  an  unusual  emergency  urgently  requires  it,  the  Ministry  of 
State  may,  when  the  Landtag  is  not  in  session,  in  conjunction 
with  the  standing  committee  provided  for  in  Article  26,  issue 
ordinances  not  in  conflict  with  this  constitution,  which  shall 
have  the  force  of  laws.  Such  ordinances  must  be  submitted  to 
the  Landtag  for  approval  at  its  next  session.  If  approval  is 
refused,  the  ordinance  must  be  immediately  declared  void  by 
publication  in  the  Law  Gazette. 

Art.  56.  The  ministers  of  state,  upon  their  induction  into 
office,  shall  take  an  oath  to  perform  their  duties  impartially  and 
for  the  public  welfare,  and  in  accordance  with  the  constitution 
and  the  laws. 

Art.  57.  (1)  The  Ministry  of  State  as  such  and  each  individ- 
ual minister  of  state  must  possess,  in  order  to  retain  office,  the 
confidence  of  the  people,  which  is  expressed  through  the  Land- 
tag. The  Landtag  may  withdraw  its  confidence  in  the  Ministry 
of  State  or  in  an  individual  state  minister  by  express  resolution. 
Such  resolution  shall  not  be  valid  if  a  popular  referendum  to 
dissolve  the  Landtag  is  legally  invoked. 


PRUSSIA  227 

(2)  A  petition  which  initiates  such  a  resolution  must  be  signed 
by  at  least  thirty  deputies. 

(3)  Such  petition  shall  be  voted  upon  no  earlier  than  the 
second  day  after  its  consideration.     It  must  be  acted  upon 
within  fourteen  days  after  its  introduction. 

(4)  A  recorded  vote  must  be  taken  on  a  question  of  lack  of 
confidence. 

(5)  A  resolution  of  lack  of  confidence  shall  be  valid  only  if 
approval  is  given  by  at  least  one-half  of  the  total  membership 
of  the  Landtag  at  the  time. 

(6)  If  the  resolution  is  passed,  the  ministers  affected  thereby 
must  resign,  but  the  Minister  President  must  resign  only  if  he 
does  not  avail  himself  of  his  privilege  of  requesting  a  dissolution 
of  the  Landtag  or  if  such  request  is  denied  by  the  committee.1 

(7)  These  provisions  shall  apply  also  in  case  the  Ministry 
of  State  as  a  whole  or  an  individual  minister  demands  a  vote  of 
confidence. 

Art.  58.  (1)  The  Landtag  shall  have  the  right  to  bring  an 
action  before  the  State  Supreme  Court  (Staatsgerichtshof) 
against  any  minister  for  having  wilfully  violated  the  constitu- 
tion or  the  laws.  The  bill  to  initiate  such  an  action  must  be 
signed  by  at  least  one  hundred  members  of  the  Landtag  and 
shall  require  the  consent  of  such  a  majority  as  has  been  desig- 
nated for  changes  in  the  constitution. 

(2)  The  composition  of  the  State  Supreme  Court,  its  proce- 
dure, and  the  decisions  to  be  rendered  by  it  shall  be  regulated 
by  law. 

Art.  59.  (1)  Any  state  minister  may  resign  his  office  at  any 
time. 

(2)  In  the  event  of  a  resignation  of  the  entire  Ministry  of 
State,  the  resigning  ministers  shall  carry  on  current  business 
until  it  is  taken  over  by  the  new  ministers. 

SECTION  VI 
LEGISLATION 

Art.  60.  The  Ministry  of  State  shall  publish  in  the  Prussian 
Law  Gazette  laws  constitutionally  enacted  and  state  treaties 
approved  by  the  Landtag. 

Art.  61.  (1)  A  law  shall  be  binding  when  it  has  been  con- 
stitutionally enacted  and  has  been  published  by  the  Ministry  of 

'See  Article  14,  Clause  1. 


228       NEW  CONSTITUTIONS  OF  EUROPE 

State  in  the  form  prescribed.  The  publication  shall  indicate 
whether  the  law  was  enacted  by  the  Landtag  or  by  a  popular 
referendum.  Article  13  of  the  constitution  of  the  Reich  shall 
not  be  affected  hereby. 

(2)  If  the  law  does  not  otherwise  specify  it  shall  go  into  effect 
on  the  fourteenth  day  after  its  publication  in  the  Law  Gazette. 

(3)  The  laws  must  be  published  within  a  month. 

Art.  62.  Bills  which  are  rejected  by  the  Landtag  shall  not 
be  introduced  again  during  the  session,  unless  a  valid  popular 
initiative  so  demands. 

SECTION  vn 
FINANCE 

Art.  63.  (1)  The  Landtag  shall  vote  the  necessary  current 
funds  to  meet  the  needs  of  the  state. 

(2)  All  revenues  and  appropriations  of  the  state  must  for 
each  fiscal  year  be  estimated  and  incorporated  in  the  budget. 
The  budget  must  be  adopted  by  law  before  the  beginning  of  the 
fiscal  year. 

(3)  The  appropriations  shall  as  a  rule  be  voted  for  one  year; 
in  special  cases  they  may  be  voted  for  a  longer  period.     Except 
in  such  cases  the  budget  law  shall  not  contain  provisions  which 
run  beyond  the  current  fiscal  year  or  which  do  not  relate  to  the 
revenues  and  appropriations  of  the  state  or  to  their  administra- 
tion. 

Art.  64.  If  before  the  end  of  a  fiscal  year  the  budget  for  the 
following  year  has  not  been  determined  by  law,  the  Ministry  of 
State  shall  be  empowered  until  a  budget  goes  into  effect: 

(a)  to  make  all  expenditures  which  are  necessary  in  order : 
(i)  to  maintain  legally  existing  institutions  and  to  exe- 
cute legally  adopted  measures, 

(ii)  to  fulfill  the  lawful  obligations  of  the  state, 
(iii)  to  continue  building  operations,  contracts,  and  other 
undertakings  for  which  appropriations  have  al- 
ready been  granted  in  the  budget  of  a  previous 
year,  as  well  as  to  continue  under  the  same 
conditions  subsidies  for  building  operations,  con- 
tracts, and  other  undertakings. 

(b)  to  issue,  for  periods  of  three  months,  treasury  notes 

to  the  amount  of  one-fourth  of  the  total  of  the 
previous  budget,  in  so  far  as  revenues  derived  by 


PRUSSIA  229 

special  laws  from  taxes,  duties,  and  other  sources 
do  not  cover  the  expenditures  under  clause  (a). 

Art.  65.  Funds  may  be  procured  upon  credit  only  for  extraor- 
dinary needs  and  as  a  rule  only  for  expenditures  for  produc- 
tive works.  Such  a  procurement  as  well  as  the  assumption  of 
any  liability  by  tke  state  may  be  undertaken  only  by  authority 
of  a  law. 

Art.  66.  Resolutions  of  the  Landtag  which  authorize  addi- 
tional expenditures  apart  from  the  budget  or  which  will  result 
in  such  additional  expenditure  in  the  future  must  at  the  same 
time  specify  how  such  additional  expenditures  shall  be  met. 

Art.  67.  (1)  Expenditures  in  excess  of  amounts  granted  by, 
or  not  included  in,  the  budget  must  be  approved  by  the  Landtag 
within  the  next  fiscal  year. 

(2)  Expenditures  in  excess  of  amounts  granted  by,  or  not 
included  in,  the  budget  require  the  approval  of  the  Minister  of 
Finance.  Such  consent  shall  be  given  only  in  case  of  an  un- 
foreseen and  unavoidable  emergency. 

Art.  68.  The  budget  accounts  shall  be  examined  and  ap- 
proved by  the  Superior  Board  of  Audit.  The  general  budget 
accounts  of  each  year  and  a  schedule  of  state  debts  shall  be  sub- 
mitted to  the  Landtag  with  a  statement  from  the  Superior  Board 
of  Audit,  which  shall  operate  to  discharge  the  Minister  of  Fi- 
nance from  responsibility. 

Art.  69.  Notwithstanding  the  provisions  of  Articles  63-68 
the  financial  management  of  revenue-producing  enterprises  of 
the  state  may  be  regulated  by  law. 


SECTION  VII 
LOCAL  AUTONOMY 

Art.  70.  Municipalities  and  groups  of  municipalities  have 
the  right  of  local  autonomy  in  their  affairs  under  the  supervision 
of  the  state  as  may  be  determined  by  law. 

Art.  71.     (1)  The  state  shall  be  divided  into  provinces. 

(2)  the  division  of  the  provinces  into  circles,  cities,  rural 
municipalities,  and  other  groups  of  municipalities  as  well  as 
the  constitution,  rights,  and  duties  thereof  shall  be  regulated 
by  law. 

Art.  72.  (1)  In  accordance  with  the  provisions  of  law  and 
through  their  own  agencies : 


230       NEW  CONSTITUTIONS  OF  EUROPE 

(a)  the  provinces    shall    administer    independently  their 

own  affairs,  whether  imposed  upon  them  by  law  or 
voluntarily  assumed  by  them  (matters  of  local 
autonomy) ; 

(b)  the  provinces  shall,  as  executive  agencies  of  the  state, 

administer  those  state  affairs  which  have  been  de- 
volved upon  them  (delegated  matters). 

(2)  The  law  may  extend  the  sphere  of  matters  of  local  auton- 
omy assigned  to  the  new  provinces  and  may  devolve  delegated 
matters  upon  them. 

Art.  73.  The  provincial  diets  may,  by  provincial  legislation, 
permit,  in  addition  to  German,  the  use  of  another  language : 

(a)  as  a  language  of  instruction  for  foreign  language  parts 

of  the  population,  provided  the  protection  of  German 
minorities  is  safeguarded; 

(b)  as  another  official  language  in  multiple  language  dis- 

tricts. 

Art.  74.  The  fundamental  principles  applying  to  elections 
to  the  popular  representative  bodies  shall  apply  also  to  elec- 
tions to  provincial,  circle,  and  municipal  representative  bodies. 
Nevertheless,  in  the  case  of  elections  to  municipal  repre- 
sentative bodies,  the  election  qualification  may  by  law  be 
made  to  depend  upon  a  specified  period  of  residence  in  the  mu- 
nicipality. 

Art.  75.  (1)  Officials,  employees,  and  workers  of  the  state 
and  of  public  corporations  shall  not  require  leave  in  order  to 
exercise  their  functions  as  members  of  a  provincial,  circle,  or 
municipal  representative  body. 

(2)  Payment  of  their  salaries  and  wages  shall  be  continued. 


SECTION  IX 
RELIGIOUS  ASSOCIATIONS 

Art.  76.  (1)  Any  person  who  desires  to  withdraw  from  a 
public  corporate  religious  association  exercising  civic  functions 
shall  make  a  declaration  of  withdrawal  before  a  court  or  shall 
file  a  personal  declaration  duly  sworn  to.  The  tax  liability  of 
the  person  who  withdraws  shall  not  be  extinguished  before  the 
end  of  the  tax  year  in  which  the  declaration  of  withdrawal  is 
made. 

(2)  Detailed  regulations  shall  be  prescribed  by  law. 


PRUSSIA  231 

SECTION  X 
STATE  OFFICIALS 

Art.  77.  (1)  Any  citizen  of  the  Reich,  without  regard  to 
sex  or  previous  occupation,  may,  if  he  possesses  the  qualifica- 
tion for  the  office,  be  appointed  a  state  official. 

(2)  The  necessary  qualification  for  specific  offices  shall  be 
prescribed  by  law. 

Art.  78.  Every  state  official  must  take  an  oath  that  he  will 
discharge  the  duties  of  the  office  entrusted  to  him  impartially 
and  according  to  his  best  knowledge  and  ability,  and  that  he 
will  conscientiously  uphold  the  constitution. 

Art.  79.  (1)  State  officials  may  not,  against  their  will,  be 
temporarily  or  permanently  retired  upon  pension,  or  transferred 
to  another  position  with  a  lower  salary  except  under  conditions 
and  according  to  forms  prescribed  by  law. 

(2)  Resort  to  legal  process  shall  be  permitted  for  the  prosecu- 
tion of  the  lawful  salary  claims  of  state  officials  and  of  their 
dependent  survivors. 

Art.  80.  In  addition  the  law  of  officers  shall  be  determined 
by  legislation  in  accordance  with  the  law  of  the  Reich. 

SECTION  XI 
.TRANSITIONAL  AND  FINAL  PROVISIONS 

Art.  81.  (1)  The  constitution  of  January  31,  1850,  and  the 
law  of  March  20,  1919,  relating  to  the  provisional  organization 
.of  public  powers  in  Prussia  are  hereby  repealed. 

(2)  All  other  existing  laws  and  ordinances  not  in  conflict  with 
the  provisions  of  this  constitution  shall  remain  in  force. 

Art.  82.  (1)  The  powers  which  according  to  previous  laws, 
ordinances,  and  treaties  were  vested  in  the  King  are  hereby 
transferred  to  the  Ministry  of  State. 

(2)  The  rights  which  pertained  to  the  King  as  temporal  head 
of  the  Established  Church  of  Prussia  shall  be  exercised  by  three 
ministers  of  the  evangelical  faith  appointed  by  the  Ministry  of 
State,  in  so  far  as  the  evangelical  churches  have  not  by  ecclesias- 
tical laws,  approved  by  state  law,  transferred  such  rights  to 
church  authorities. 

(3)  All  other  rights  hitherto  exercised  by  the  King  as  against 
religious  associations  shall  be  regulated  anew  in  accordance  with 
Article  137  of  the  constitution  of  the  Reich. 


232       NEW  CONSTITUTIONS  OF  EUROPE 

Art.  83.  At  the  instance  of  any  interested  party  an  existing 
patronage  shall  be  annulled  as  soon  as  lawful  financial  obliga- 
tions shall  have  been  cancelled.  The  procedure  and  the  princi- 
ples for  the  cancellation  shall  be  prescribed  by  law. 

Art.  84.  Existing  taxes  and  duties  shall  continue  to  be  levied 
until  altered  or  repealed. 

Art.  85.  Until  the  convening  of  the  first  Landtag  the  Con- 
stituent Assembly  shall  function  as  the  Landtag. 

Art.  86.  Until  the  legislation  provided  for  in  Article  72  goes 
into  effect,  the  Oberprasidents,  the  Regierungsprasidents,  and  the 
presiding  officers  of  the  provincial  education  council  and  of 
the  bureau  of  agriculture  shall  be  appointed  in  agreement  with 
the  provincial  committee. 

Art.  87.  Constitutional  conflicts  shall  be  decided  by  the 
State  Supreme  Court. 

Art.  88.  This  constitution  shall  be  in  force  from  the  date 
of  its  publication  except  for  Articles  31-43,  72,  and  86.  These 
Articles  shall  not  be  in  force  until  the  provincial  diets  shall  have 
been  newly  elected  as  provided  by  Article  74. 

BERLIN,  November  30,  1920 
The  Prussian  Ministry  of  State 

BBAUN       FISHBECK       HAENISCH       AM  ZEHNHOFF       OESER 
STEGERWALD          SEVERING          LUDEMANN 


CHAPTER  XI 
BAVARIA,  WURTTEMBERG,  AND  BADEN1 

AFTER  the  revolution  of  November,  1918,  the  states 
that  had  been  members  of  the  German  Empire  were 
faced  with  the  problem  of  adopting  new  constitutions.  In 
this  matter,  however,  they  could  not  proceed  according  to 
their  own  free  will,  for  in  Article  17  of  the  constitution  of 
the  Reich  of  August  11,  1919,  certain  basic  provisions 
were  laid  down  to  which  the  constitutions  of  each  of  the 
federal  states  had  to  conform.  It  was,  for  example,  neces- 
sary that  the  Government  of  each  one  of  the  states  should 
at  all  times  possess  the  confidence  of  the  popular  repre- 
sentative body.  Furthermore,  the  states  were  prevailed 
upon  to  give  up  the  idea  of  electing  presidents,  and  it  was 
also  suggested  that  they  should  constitute  their  executives 
on  the  Swiss  pattern.  Their  problem,  therefore,  was  a  new 
one;  they  had  to  combine  a  parliamentary  system  and  a 
collegial  or  directorial  system.  The  question  arises  whether 
a  fusion  of  these  two  systems  is  possible  unless  one  of 
them  loses  its  essential  characteristics.  This  question  can 
best  be  answered  by  considering  the  solutions  that  are  at- 
tempted by  the  constitutions  of  the  different  free  states. 


Eight  days  before  the  elections  to  the  constituent  as- 
sembly  on  January  4,  1919,  the  provisional  government 

lrrhis  description  of  the  governments  of  the  German  states  is  condensed  from 
Adelheid  Meuschel,  "Die  Regierungsbildung  im  Deutschen  Reich  und  seinen 
Landern  nach  den  Vorschriften  der  gegenwartig  gtiltigen  Verfassungen,"  Archiv 
des  offentlichen  Rechls,  Vol.  XLI,  pp.  32ff.  (Tubingen,  19£1). 

233 


The  Reich 
and  the 
State  con- 
stitutions 


Bavarian 


Provisional 

fundamental 

law 


Position  of 
Ministry 
under  pro- 
visional law 


234       NEW  CONSTITUTIONS  OF  EUROPE 

issued  a  basic  law  which  was  to  serve  as  a  guide  for  the 
assembly  when  it  proceeded  to  the  drafting  of  a  new  con- 
stitution.1 This  law,  however,  was  vague  on  the  question 
of  the  form  of  the  government.  In  case  of  conflict  between 
the  Landtag  and  the  Government,  it  was  the  idea  that 
the  people  themselves  should  decide.  The  probable  pur- 
pose of  this  provision  was  to  allow  the  Government  to 
have  the  support  of  the  people  on  which  to  fall  back  in 
case  of  dispute  with  the  Landtag.  This  provision,  how- 
ever, was  not  adopted. 

The  first  meeting  of  the  constituent  assembly  was  in- 
terrupted by  a  popular  outbreak  on  February  21.  When 
it  met  again  in  March,  1919,  a  fundamental  state  law  was 
adopted,  which  provided  in  Section  8  that  the  highest 
executive  authority  should  be  exercised  by  the  entire 
Ministry.  The  presiding  officer  of  the  Ministry  was  to 
be  elected  by  a  majority  vote  of  the  assembly.  The  other 
ministers  were  to  be  chosen  by  him.  Since  it  was  neces- 
sary for  the  ministers  to  have  the  confidence  of  the  assem- 
bly at  all  times,  it  was  also  necessary  for  the  presiding 
officer  to  undertake  the  selection  of  his  colleagues  in  con- 
sultation with  the  parties  in  the  assembly. 

It  is  therefore  clear  that  the  parties  of  the  assembly 
were  to  exercise  the  controlling  influence  in  the  formation 
of  the  Government.  Section  7  of  the  temporary  funda- 
mental state  law  provided  that  the  final  decision  with 
regard  to  the  formation  of  the  Government  should  lie 
with  the  voting  population,  for  the  Ministry  was  given 
the  right,  in  case  of  a  resolution  of  the  assembly  that  was 
contrary  to  the  fundamental  state  law,  to  cause  a  referen- 
dum to  be  had  with  regard  to  the  resolution.  This  refer- 
endum should  at  the  same  time  decide  as  to  the  continued 

1On  October  30,  1919,  the  Free  State  of  Coburg  decided  by  an  overwhelming 
majority  to  join  the  Free  State  of  Bavaria  and  on  March  11, 1920,  the  Bavarian 
Landtag  unanimously  adopted  a  bill  for  the  union  of  the  two  States.  See  above, 
p.  67.  Coburg  had  three  representatives  in  the  constituent  assembly  that 
drafted  the  Bavarian  constitution. 


BAVARIA,  WURTTEMBERG,  AND  BADEN    235 

existence  of  the  Ministry.  This  provision,  however,  did 
not  secure  a  balance  between  the  popular  representative 
body  and  the  Government  itself,  because  the  decision  of 
the  people  could  be  had  only  in  certain  definitely  pre- 
scribed cases,  namely,  if  a  resolution  of  the  Landtag  was 
in  violation  of  the  fundamental  state  law.  The  continued 
existence  of  the  Ministry  was  in  all  other  cases  subject  to 
the  will  of  the  assembly,  which  had  constituted  it  and 
which  could  cause  it  to  resign  in  case  of  a  vote  of  lack  of 
confidence.  Accordingly,  the  temporary  fundamental 
state  law  had  not  created  a  parliamentary  system  in  its 
true  form.  The  solution  of  this  problem  was  reserved  for 
the  constitution. 

A  draft  of  the  final  constitution  was  presented  to  the 
assembly  by  the  Government  on  May  28,  1919.  It  was 
referred  to  a  committee  which  changed  many  details,  but 
which  did  not  touch  the  fundamentals  of  the  draft.  The 
final  draft  presented  by  the  committee  was  accepted  by 
the  assembly  without  change  and  was  promulgated  on 
August  14, 1919,  three  days  after  the  promulgation  of  the 
constitution  of  the  Reich. 

Section  58  of  the  constitution  contains  the  provisions 
applying  to  the  formation  of  the  Government.  The  Min- 
istry is  appointed  by  the  Landtag  and  thus  derives  its 
power  from  the  representatives  of  the  people.  As  in  the 
provisional  constitution,  the  Minister  President  is  chosen 
by  the  Landtag  on  the  basis  of  a  majority  vote.  He  in 
turn  recommends  a  list  of  the  other  ministers  to  the  Land- 
tag and  they  are  appointed  by  him  with  its  consent.  In 
case  of  a  ministerial  crisis  the  various  parties  of  the  Land- 
tag hold  a  conference  in  order  to  determine  which  parties 
shall  combine  to  form  a  parliamentary  majority,  and  in 
order  to  nominate  a  Minister  President  and  the  personnel 
of  the  new  ministry  on  the  basis  of  the  relative  strength 
of  the  parties.  In  other  words,  the  constitution  provides 


The  consti- 
tution of 
1919 


The 

Ministry 
under  the 
final 
constitution 


Modes  of 
dissolution 


The 

Landtag 

dominates 


236       NEW  CONSTITUTIONS  OF  EUROPE 

a  definite  machinery  for  the  creation  of  coalition  minis- 
tries, which  subsequently  are  formally  ratified  by  the 
Landtag. 

Article  31  empowers  the  Landtag  to  dissolve  itself.  It 
seems  improbable  that  the  Landtag  will  use  this  method 
of  appealing  to  the  people  in  case  of  dispute  with  the 
Government,  since  it  has  express  authority  to  substitute 
a  new  government  for  one  with  which  it  does  not  agree. 

The  final  constitution  does  not  permit  the  Ministry  to 
appeal  to  the  people  for  a  decision  by  popular  referendum 
in  case  of  dispute  with  the  Landtag.  Section  40  of  the 
first  draft  had  provided  for  such  action,  but  this  privilege 
of  the  Government  was  later  eliminated.  The  Landtag 
may  dissolve  itself,  or  it  may  be  dissolved  if  one-fifth  of 
the  qualified  voters  so  demand.  This  demand  must  be 
made  on  the  basis  of  a  vote  in  which  at  least  one-half  of 
the  qualified  voters  have  taken  part,  and  at  least  two- 
thirds  of  those  who  vote  must  be  in  favor  of  the  dissolu- 
tion. It  is  apparent  that  the  power  that  has  been  placed 
in  the  hands  of  the  people  can  be  used  only  in  very  unusual 
cases.  In  truth,  the  Government  itself  is  unable,  under 
the  new  constitution,  to  defend  its  stand  on  any  particular 
question.  The  most  important  factor  is  the  Landtag,  and 
on  careful  analysis  one  sees  that  the  people  themselves 
play  only  a  minor  part  in  the  direction  of  the  policies  of 
the  Government  except  in  the  matter  of  electing  the 
Landtag. 


Wurttem- 
berg 

constituent 
assembly 


THE  GOVERNMENT  OF  WURTTEMBERG  ACCORDING  TO  THE 
CONSTITUTION  OF  SEPTEMBER  25,  1919 

The  revolutionary  government  of  Wiirttemberg  caused 
the  election  of  a  constituent  assembly  to  be  held  on  Jan- 
uary 12,  1919.  On  April  26,  1919,  a  constitution  was 
adopted  by  this  assembly,  but  the  promulgation  of  the 
constitution  of  the  Reich  in  August  made  many  changes 


BAVARIA,  WURTTEMBERG,  AND  BADEN    237 

necessary.  On  September  25,  1919,  however,  the  final 
draft  was  approved  and  adopted.  On  the  whole,  the  pro- 
visions relating  to  the  formation  of  the  Government  are 
the  same  in  this  constitution  as  in  the  Bavarian  constitu- 
tion. 

The  constitution  of  Wiirttemberg  expressly  provides 
(Article  27)  that  a  new  ministry  shall  be  formed  after  each 
election  of  a  Landtag.  This  provision  would  appear  to 
be  wholly  unnecessary,  or  at  best  purely  a  formal  mat- 
ter, since  the  returns  of  the  elections  will  automatically 
fix  the  status  of  the  former  ministry  and  its  ability  to 
remain  in  office.  The  probable  intention  of  the  article 
was  to  give  an  appearance  of  direct  influence  on  the 
part  of  the  voting  population  in  the  formation  of  the 
Ministry. 

In  Wiirttemberg  the  Government  has  the  right  to  in-  Referendum 
voke  a  popular  referendum  on  the  dissolution  of  the  Land-  °n  dissolu- 
tag  (Article  16).  While  they  may  call  on  the  people  to 
act  as  judges  in  case  of  dispute  with  the  Landtag,  the 
Ministry  will  scarcely  take  this  step,  for,  if  it  be  as- 
sumed that  they  have  properly  estimated  the  state  of 
public  opinion,  and  if  the  popular  referendum  decides 
for  the  dissolution  of  the  Landtag,  the  new  elections 
will  bring  a  majority  into  the  Landtag  which  will  certainly 
differ  from  that  majority  which  put  the  Government  into 
office. 

It  is  true,  however,  that  the  weapon  that  has  been 
placed  in  the  hands  of  the  people  to  control  the  Landtag 
is  worked  out  on  a  better  plan  than  it  is  in  Bavaria.  One- 
fifth  of  the  qualified  voters  may,  according  to  this  con- 
stitution, demand  that  a  referendum  be  had  with  regard 
to  the  dissolution  of  the  Landtag.  But  only  a  majority 
of  those  voting  need  be  hi  favor  of  a  dissolution.  The 
result  is  that  this  constitution  succeeds  somewhat  better 
in  bringing  about  a  balance  between  the  authority  of  the 
Landtag  and  that  of  the  Ministry. 


238       NEW  CONSTITUTIONS  OF  EUROPE 


The  Baden 

collegial 

executive 


Control  by 
Landtag 


THE  GOVERNMENT  OF  BADEN  ACCORDING  TO  THE  CON- 
STITUTION OF  MARCH  21,  1919 

It  may  be  said  that  the  changes  that  took  place  in 
Baden  after  the  revolution  were  probably  carried  into 
effect  with  greater  dispatch  and  with  less  opposition  than 
in  any  other  state  of  the  Reich.  The  constitutional 
assembly  met  for  the  purpose  of  adopting  a  constitution 
in  January,  1919;  the  draft  was  presented  in  March  of  the 
same  year  and  was  accepted  and  promulgated  as  early  as 
April  13,  1919. 

The  provisions  of  the  constitution  of  this  state  vary 
markedly  from  those  of  the  constitutions  of  the  states 
mentioned  previously.  Especially  is  this  true  of  the 
formation  of  the  Government  as  provided  in  Articles  52  ff. 
The  constitution  of  Baden  attempts,  in  so  far  as  is  possible, 
to  follow  the  provisions  laid  down  in  the  constitution  of 
Switzerland.  The  parliamentary  system  that  is  imposed 
upon  the  states  by  Article  17  of  the  constitution  of  the 
Reich  is  followed  in  Baden  only  in  so  far  as  is  absolutely 
necessary  to  conform  with  this  national  requirement. 

The  Ministry  is  a  collegial  executive.  The  ministers, 
seven  in  number  according  to  a  law  of  April  2,  1919,  are 
elected  in  open  meeting  of  the  Landtag  for  their  individ- 
ual offices.  Thereafter  the  Landtag  elects  the  Minister 
President  from  among  the  ministers. 

In  the  constitution  of  Baden  the  Landtag  is  vested  with 
power  to  recall  the  entire  Ministry  or  any  member  of  it 
by  a  majority  vote.  A  vote  of  lack  of  confidence  in  the 
Ministry  is  therefore  not  necessary  to  force  the  entire 
Ministry  or  members  of  it  out  of  office.  Manifestly  this 
provision  is  only  a  change  in  form  from  the  provisions 
mentioned  in  the  previous  constitutions,  since  a  Ministry 
in  order  to  remain  in  office  must  have  the  confidence  of  the 
Landtag  which  can  at  all  times  either  vote  it  down  or 
bring  a  direct  vote  of  expulsion.  Contrary  to  the  custom 


in  Switzerland,  each  member  of  the  Ministry  in  Baden 
must  be  affiliated  with  some  one  of  the  parties  represented 
in  the  Landtag;  here  also  the  formation  of  a  Ministry  is 
undertaken  on  the  basis  of  the  relative  strength  of  the 
parties. 

The  formation  of  the  Government  may  be  influenced  by 
the  people  every  four  years  at  the  time  of  the  general 
elections.  Apart  from  this,  provision  is  made  that  80,000 
voters  may  at  any  time  demand  a  referendum  upon  the 
question  of  a  dissolution  of  the  Landtag.  This  must  be 
carried  out  within  one  month;  and  if  a  majority  of  those 
voting  express  themselves  in  favor  of  dissolution  it  must 
be  ordered  by  the  Ministry.  It  is  to  be  observed  that 
80,000  electors  constitute  only  one-fifteenth  of  those 
eligible  to  vote.  The  fact  that  such  a  small  number  is 
necessary  to  initiate  a  demand  for  a  popular  referendum 
is  noteworthy,  because  it  gives  the  opposition  parties  a 
much  better  chance  to  carry  out  a  threat  of  overthrowing 
the  Government  than  in  Bavaria  and  Wiirttemberg  where 
one-fifth  of  the  qualified  voters  must  initiate  the  demand 
for  a  referendum.  The  constitution  as  finally  adopted 
does  not  give  the  Landtag  the  right  to  dissolve  itself,  nor 
does  it  permit  the  Ministry  to  dissolve  it,  the  idea  being 
that  the  Ministry  is  at  all  times  subject  to  the  Landtag. 
In  other  words,  the  Landtag,  as  an  organ  of  popular  will, 
is  the  central  directing  body;  it  elects  and  controls  the 
Ministry.  The  Government  is  intentionally  subordi- 
nated to  the  popular  representative  body.  At  best  the 
people  can  be  considered  as  factors  only  in  the  gen- 
eral elections  after  each  legislative  term;  for  at  other 
times  their  potential  power  will  rarely  be  brought  into 
play. 

It  is,  of  course,  impossible  at  this  time  to  venture  any 
detailed  criticisms  of  the  provisions  of  the  constitutions  of 
the  German  states.  The  new  governments  have  been  in 


Control  by 
voters  over 
dissolution 


Importance 
of  Landtag 


Conclusions 
impossible 


240       NEW  CONSTITUTIONS  OF  EUROPE 

existence  for  a  short  time  only.  The  formation  of  the 
Ministries  and  their  responsibility  to  the  Landtags  raise 
what  are  probably  the  most  important  and  the  most  in- 
teresting questions  in  connection  with  the  constitutions; 
but  the  wisdom  of  the  adjustments  that  have  been  made 
can  be  tested  only  by  experience. 


CHAPTER  XII 
AUSTRIA 

1.     HISTORICAL  NOTE 

IT  WOULD  require  pages  of  historical  recital  to  describe 
with  approximate  accuracy  the  origin  of  the  political  en- 
tity that  was  known  from  1867  to  1918  as  the  Austro- 
Hungarian  Monarchy.  Suffice  it  to  say  that  the  period 
from  1859  to  1867  marked  an  epoch  of  importance  in  the 
politico-legal  relations  of  the  group  of  twenty-odd  political 
units  which,  united  under  the  absolutism  of  the  Hapsburg 
dynasty,  were  generically  known  as  the  Austrian  Empire. 
Of  these  political  units,  or  provinces,  Hungary  was  by  far 
the  largest;  and  it  was  Hungary's  claim  that  the  interests 
of  Croatia,  Slavonia,  and  Transylvania  were,  as  against 
most  of  the  other  provinces,  closely  tied  up  with  her  own 
interests.  Over  against  these  Hungarian  interests  and 
aspirations  were  set  those  of  a  group  of  German  controlled 
provinces  in  the  west.  The  Italians  in  the  southwest, 
the  Czechs  in  Bohemia  and  Moravia  to  the  northwest, 
and  the  Poles  and  Ruthenes  in  Galicia  and  Bukowina  to 
the  northeast,  were  by  no  means  enamored  of  close  union 
with  the  Germans;  but  they  were  also  not  drawn  to  the 
Hungarians. 

When  it  became  no  longer  possible  to  stem  the  tide  of 
demand  for  an  abolition  of  absolutism  in  favor  of  a  consti- 
tutional system,  the  issue  was  squarely  presented  whether 
there  should  be  a  centralized  system,  which  the  Germans 
advocated;  or  a  federal  system,  which  would  have  met 
the  wishes  of  the  minor  nationalities  and  especially  of 
the  Czechs  and  Poles;  or  a  dual  system,  which  the  Hun- 


Austrian 
affairs, 
1859  to  1867 


Centraliza- 
tion, 

dualism,  or 
federalism 


The 

Diploma  of 
1860 


242       NEW  CONSTITUTIONS  OF  EUROPE 

garians  demanded,  and  which  the  Germans  on  the  whole 
preferred  to  federalism.  The  steps  which  led  up  to  the 
triumph  of  dualism  in  1867  may  be  briefly  recounted. 

In  March,  1860,  the  Emperor  called  the  first  legislative 
assembly  of  the  whole  Empire.  This  assembly  was  in 
fact  merely  the  old  so-called  Reichsrat  of  permanent 
officials,  reinforced  by  certain  life  members  and  certain 
appointees  of  the  Emperor.  It  was  almost  exclusively 
aristocratic.  In  October,  1860,  an  imperial  Diploma  was 
issued  which  was  said  to  be  "completed"  but  was  actually 
superseded  in  February,  1861,  by  an  imperial  Patent  estab- 
lishing in  effect  a  centralized  form  of  government. 


The  Patent  The  Patent  instituted  a  Reichsrath,  composed  of  two  Cham- 

of  1861  bers.     In  the  first,  the  Chamber  of  Lords,  were  represented, 

by  right  of  succession  or  nomination,  those  who,  by  birth,  posi- 
tion, or  merit,  belonged  to  the  aristocracy.  In  the  second,  the 
Chamber  of  Deputies,  sat  343  representatives,  who  were  elected 
by  the  provincial  Diets  on  the  system  of  the  representation  of 
interests.  Like  the  members  of  the  Diet  itself,  they  were  divided 
into  four  Curias,  namely,  the  great  landowners,  the  Chambers 
of  Commerce,  the  cities,  and  the  rural  districts.  In  each  Curia 
a  certain  payment  in  taxes  was  the  qualification  for  the  fran- 
chise. The  value  of  the  vote  varied  considerably  in  the  several 
Curioe  and  provinces:  some  deputies  were  elected  by  two  or 
three  votes  only,  others  by  between  ten  and  twelve  thousand. 
In  every  case,  the  German  provinces  or  districts  were  favored 
and  the  Slavs  treated  unfairly.  Under  the  cloak  of  principle, 
all  principle  was  ignored;  for  the  sole  object  was  to  set  up  a 
Reichsrath  which  would  not  hamper  the  Government.  More- 
over, both  in  the  Diets  and  in  the  Chamber  of  Deputies,  every- 
thing was  calculated  to  ensure  a  permanent  majority  of  the 
great  landowners,  on  whose  unflinching  devotion  the  Govern- 
ment reckoned  in  all  circumstances.1 


Importance 
of  the 
Patent 


This  constitution,  or  Patent,  was  never  in  full  operation, 
for  Hungary  refused  to  send  representatives  to  the  Reichs- 
rat, and  after  a  brief  trial  the  Czechs  withdrew.  The 
Patent  was  suspended  in  September,  1865.  But  the  char- 


iCambridge  Modern  History,  XII,  pp.  178,  179  (London,  1910). 


AUSTRIA  243 

acter  of  the  parliament  or  Reichsrat  which  it  established 
is  of  importance,  for  it  was  the  Austrian  "rump"  of 
this  Reichsrat  which  in  1867  agreed  to  the  dualistic  com- 
promise with  Hungary  and  enacted  the  constitution  under 
which  the  Austrian  part  of  the  Dual  Monarchy  was  gov- 
erned down  to  1918. 

In  the  year  1866  occurred  the  seven  weeks'  war  between 
Austria  and  Prussia.  The  swift  and  decisive  defeat  of 
Austria  not  only  made  possible  the  creation  of  the  German 
Empire  but  also  made  it  inevitable  that  Hungary  would 
successfully  assert  a  large  measure  of  autonomy  in  a  new 
constitutional  system  for  the  agglomeration  of  states 
known  as  Austria.  Before  the  signing  of  the  treaty  of 
peace  on  August  20,  1866,  negotiations  were  got  under 
way  between  Deak  and  Count  Andrassy,  the  Magyar 
leaders  in  Hungary,  and  Baron  Beust,  the  Chancellor  and 
Minister  President  of  Austria. 

The  Hungarian  scheme  for  dividing  the  Empire  into     The 
two  sections,  under  German  and  Magyar  leadership  re- 
spectively,  had  been  completed  just  before  the  outbreak  0 

of  hostilities.  A  commission  of  the  Hungarian  diet  had 
perfected  a  proposal  of  organization  for  the  conduct  of 
affairs  common  to  the  two  sections.  This  was  the  Hun- 
garian program;  and  on  the  part  of  Hungary  ratification 
by  her  own  diet  was  sufficient  to  give  the  proposal  legality. 
But  there  was  no  such  unity  of  program  among  the 
numerous  non-Hungarian  provinces,  and  there  was  no 
single  legislative  body  to  act  in  their  behalf.  There  were 
those  who  urged  that  a  special  Reichsrat  be  called,  con- 
sisting of  representatives  elected  by  all  of  the  diets  (in- 
cluding that  of  Hungary)  without  distinction  of  curioe. 
But  it  was  certain  that  such  an  assembly  would  amend 
the  Hungarian  scheme  in  the  direction  of  federalism. 
In  the  end  the  Emperor,  by  a  Patent  of  January  1,  1867, 
ordered  new  elections  of  diets  in  a  designated  list  of  prov- 
inces and  convoked  a  Reichsrat  the  lower  house  of  which 


The 

"smaller" 
Reichsrat 


The 

Ausgleich 
of  1867 


Character 
of  the 
Dual  Union 


244       NEW  CONSTITUTIONS  OF  EUROPE 

consisted  of  members  chosen  by  these  provincial  diets  in 
accordance  with  the  illiberal  provisions  of  the  constitution 
of  1861.  Hungary,  Croatia,  Slavonia,  and  Transylvania 
were  not  called  upon  to  send  representatives  to  this 
Reichsrat.1  The  effect  of  this  patent  was  to  insure  the 
success  of  dualism;  for  it  gave  legal  recognition  to  a  division 
of  the  Empire  into  two  segments.  The  non-Hungarian 
segment  was  to  be  represented  in  this  so-called  "smaller" 
Reichsrat.  By  dissolving  provincial  diets  and  manipulat- 
ing elections,  this  body  was  made  safely  German  and  there- 
fore anti-federalist.  The  Hungarian  part  of  the  new 
Austro-Hungarian  Monarchy  naturally  continued  to  be 
known  under  the  ancient  title  of  the  Kingdom  of  Hungary. 
In  popular  usage  both  in  and  out  of  the  Dual  Monarchy 
the  non-Hungarian  part  came  to  be  called  the  Austrian 
Empire.2 

On  May  29, 1867,  the  Ausgleich,  or  Compromise,  founded 
upon  the  proposal  of  Hungary,  was  formally  ratified  by  the 
Hungarian  diet;  but  the  Austrian  "smaller"  Reichsrat, 
which  had  just  assembled,  proposed  certain  amend- 
ments. Thereupon  deputations  of  fifteen  members  from 
each  of  the  parliaments  met  as  a  kind  of  conference  com- 
mittee. The  proposals  upon  which  they  agreed  were 
finally  adopted,  although  not  in  identical  forms,  by  both 
parliaments.  The  Austrian  act  bears  the  date  of  De- 
cember 21,  1867. 

The  Union  of  Empire  and  Kingdom  was  unique.  It 
was  more  than  a  mere  personal  union  but  less  than  a  fed- 
eration. Although  there  were  only  two  units,  it  perhaps 
more  nearly  approximated  a  confederation  founded  upon 
a  treaty.  Apart  from  the  three  central  organs  of  the 
Union,  each  of  the  units  was  completely  autonomous. 
These  central  organs  were  the  Crown,  the  so-called  Dele- 

lReichs-Gesetz-"Blatt  filr  das  Kaiserthum  Oesterreich,  1867,  p.  1. 

2From  1867  the  official  designation  for  the  Austrian  part  of  the  Dual  Monarchy 
was  simply  "the  Kingdoms  and  Lands  represented  in  the  Reichsrat."  It  was 
not  until  1915  that  the  term  "Austrian  Empire"  was  officially  adopted. 


AUSTRIA 


245 


gations,  and  the  Ministers  of  Foreign  Affairs,  War,  and 
Finance.  For  the  most  part  the  relations  of  the  monarch 
were  not  with  the  Austro-Hungarian  Monarchy  but  with 
Austria  as  Emperor  and  with  Hungary  as  King.  For  the 
consideration  of  certain  common  affairs  each  parliament 
elected  annually  a  Delegation  of  sixty  members.  These 
Delegations  sat  as  separate  houses,  except  in  case  of  dis- 
agreement, and  alternately  in  Vienna  and  Budapest. 
Save  for  approving  appropriations  and  dealing  with  some 
matters  relating  to  the  common  ministries,  the  Delegations 
enacted  no  laws.  There  was  uniform  legislation  on  a  few 
important  subjects,  but  it  was  not  enacted  by  the  Delega- 
tions. It  consisted  of  identical  or  parallel  laws  enacted 
by  each  of  the  parliaments.  Upon  many  subjects  the  laws 
of  the  two  parts  of  the  Monarchy  were  not  in  accord.  It 
is  needless  to  say  that  under  these  circumstances  there 
could  be  no  such  thing  as  a  central  responsible  ministry 
of  the  Dual  Monarchy.  Ministerial  responsibility  implies 
at  least  some  measure  of  unity  in  the  system  of  represen- 
tative control.  There  was  little  or  no  unity  in  the  coequal 
and  often  clashing  Delegations;  and  there  was  still  less 
unity  in  the  coequal  parliaments,  each  consisting  of  two 
approximately  coequal  chambers.  The  common  minis- 
ters of  Foreign  Affairs,  War,  and  Finance  stood  in  a  wholly 
anomalous  and  uncertain  position  between  the  Emperor- 
King  on  the  one  hand  and  the  Deputations  of  two  almost 
independent  and  internally  discordant  parliaments  on  the 
other. 

The  inexactitude  of  powers  and  responsibilities  in  this 
strange  union  was  a  more  or  less  exact  reflection  of 
the  racial  and  other  elements  of  disharmony  upon  which 
the  union  rested.  The  scheme  inevitably  played  into  the 
hands  of  a  powerful  and  autocratic  bureaucracy.  By  and 
large,  the  influence  of  Hungary  not  only  outweighed  that 
of  Austria  but  was  also  wholly  out  of  proportion  to  her 
relative  population  or  wealth.  For  the  Magyars,  though 


Absence  of 
ministerial 
responsi- 
bility 


Results  of 
the  scheme 


246       NEW  CONSTITUTIONS  OF  EUROPE 


Economic 
interde- 
pendence 


Austrian 

and 

Hungarian 

counter 

influences 


The 

geography 
of  Austria 


in  bare  majority,  dominated  the  other  peoples  of  Hungary 
and  were  able  to  present  a  united  political  front  and  pur- 
pose that  could  not  be  matched  in  Austria  by  the  efforts 
of  the  German-Austrians  to  dominate  the  Czechs  and  the 
Poles. 

It  is  true  that,  in  addition  to  the  magnet  of  dynasty, 
one  far-reaching  circumstance  of  cohesion  existed ;  econom- 
ically there  was  an  immense  amount  of  interdependence 
among  the  parts  of  the  loosely  knitted  Dual  Monarchy.1 

Even  so,  in  view  of  the  fragile  character  of  the  organs 
of  Union  between  Austria  and  Hungary,  one  might  hazard 
the  guess  that  the  institutional  history  of  the  one  could 
be  written  without  much  regard  for  that  of  the  other. 
In  fact,  quite  the  reverse  is  true.  Paradoxical  as  it  may 
seem,  the  thin  quality  of  the  legal  Union  made  the  internal 
affairs  of  each  part  of  the  Dual  Monarchy  a  matter  of  con- 
cern to  the  other  part.  Especially  would  it  be  impossible 
to  describe  the  political  or  institutional  life  of  the  Austrian 
part  of  the  Monarchy  without  consideration  of  the  Hun- 
garian influence.  But  whatever  may  be  true  of  history, 
it  is  manifest  that  the  institutional  cord  that  joined  the 
two  grand  divisions  of  the  Monarchy  could  be  severed 
without  any  serious  shock  to  either  of  the  bodies  politic. 
In  the  dissolution  of  the  Monarchy  in  1918,  this  severance 
of  course  occurred.  It  is,  therefore,  not  only  possible  but 
almost  indispensable  to  consider  the  situation  and  the 
eventualities  in  the  Austrian  Empire  apart  from  those  in 
the  Kingdom  of  Hungary. 

It  was  Hungary  that  gave  geographical  compactness  to 
the  Dual  Monarchy.  The  Kingdom  fitted  like  a  huge  ball 
into  the  far-flung  crescent  of  the  Empire.  This  Austrian 

1"The  political  powers,  then,  which  control  respectively  the  Austrian  and 
the  Hungarian  half  of  the  Monarchy,  have  reckoned  with  the  economic  factor, 
and  have  both  concluded  that  it  is  the  determining  force  hi  their  political  des- 
tinies. They  see  that  neither  of  them  is  economically  strong  enough  to  stand 
alone,  and  that  the  alternative  to  'Dualism'  is  not  independence,  but  the  in- 
corporation of  each  in  another  group  or  unit."  Toynbee,  Nationality  and  the 
War,  p.  121  (New  York,  1915). 


AUSTRIA 


247 


crescent  was  two  thousand  miles  in  length  and  only  about 
one  hundred  miles  in  average  width.1  With  Hungary 
excluded,  the  geographical  sprawl  of  political  Austria 
was  positively  fantastic.  Upon  such  a  territory,  carved 
out  of  the  heart  of  Europe,  it  would  have  been  difficult 
to  hold  even  a  homogeneous  people  in  political  integration. 
And  the  peoples  of  Austria  were  highly  heterogeneous. 
According  to  the  Austrian  census  of  1910  there  was  a  total 
population  in  the  seventeen  provinces  of  28,500,000.2  Of 
these  a  little  more  than  one-third  were  German,  something 
more  than  one-fifth  were  Czechs,  slightly  more  than  one- 
sixth  were  Poles,  and  about  one-eighth  were  Ruthenians. 
The  other  included  nationalities,  in  the  order  of  their 
numbers,  were  Slovenes,  Italians,  Serbs,  Croats,  and 
Rumanians.  About  three-fifths  of  the  Germans  were 
concentrated  in  seven  western  provinces,3  in  most  of 
which  they  were  in  overwhelming  majority;  but  they  also 
constituted  important  minorities  in  the  three  provinces  of 
the  northwest.4  The  Czechs  were  concentrated  almost 
wholly  in  two  of  these  northwestern  provinces — Bohemia 
and  Moravia — where  they  were  in  very  substantial  ma- 
jority. Apart  from  constituting  a  sizeable  minority  in 
Silesia,  the  Poles  were  almost  exclusively  in  the  huge 
western  province  of  Galicia,  where  they  outnumbered  the 
Ruthenians  three  to  two.  The  Ruthenians  and  Ruman- 
ians had  large  and  nearly  equal  minorities  in  Bukowina, 
at  the  eastern  tip  of  the  crescent.  In  the  southwestern 
provinces  bordering  on  Italy  and  the  Adriatic,  Germans, 
Italians,  Slovenes,  and  Serbo-Croats  intermingled  in  varying 
and  bewildering  combinations  from  province  to  province.5 

'Bowman,  The  New  World,  p.  208  (New  York,  1922). 

'See  table,  ibid.,  p.  210. 

'Lower  Austria,  Upper  Austria,  Salzburg,  Styria,  Carinthia,  Vorarlberg,  and 
Tyrol. 

4Bohemia,  Moravia,  and  Silesia. 

6In  the  province  of  Tyrol  the  Germans  were  in  majority,  the  Italians  in  the 
.minority.  In  Styria  and  Carinthia  the  Slovenes  had  substantial  minorities 
among  strong  German  majorities.  In  Gorizia  and  Trieste  the  Italian-  and 


The  nation- 
alities of 
Austria 


Dissentious 

political 

history 


Austrian 
Constitution 
of  1867 


248       NEW  CONSTITUTIONS  OF  EUROPE 

Apart  from  the  influence  of  dynasty  and  the  degree  of 
economic  interdependence  that  assisted  in  holding  all  parts 
of  the  Dual  Monarchy  together,  there  was  indeed  an  ad- 
ditional cohering  circumstance  in  the  Austrian  part:  the 
population  of  nearly  every  province  was  overwhelmingly 
Roman  Catholic.  But  this  was  not  sufficient  to  create 
unity  in  a  state  that  embodied  such  an  opulence  of  variety 
in  the  matter  of  nationalities  and  spread  itself  over  a  ter- 
ritory of  such  weird  contour  and  dimensions.  It  is  un- 
necessary to  review  here  the  dissentious  political  history 
of  Austria  during  the  years  preceding  the  outbreak  of  the 
World  War.  Let  it  be  said  merely  that  the  turbulence  of 
her  internal  politics  was  sufficient  to  show  that  under  any 
heavy  strain  the  Austrian  part  of  the  Dual  Monarchy — 
to  say  nothing  of  the  Hungarian  unit — would  crack  and 
crumble  into  bits. 

In  1918  Austria  was  operating  under  a  written  constitu- 
tion. In  essence  this  constitution  was  found  in  five  fun- 
damental laws  adopted  December  21,  1867,  as  part  and 
parcel  of  the  general  arrangement  which  resulted  in  the 
Ausgleich  with  Hungary.  The  constitution  was,  therefore, 
the  work  of  the  "smaller"  Reichsrat  which  the  Emperor 
had  convoked  to  deal  with  the  circumstance  of  Hungarian 
disaffection.  In  both  of  its  houses  this  "constituent 
assembly"  was  essentially  aristocratic.  The  form  of  gov- 
ernment that  was  established  by  this  constitution  need 
not  be  described  in  detail.  It  was  in  most  respects  iden- 
tical with  the  centralized  system  which  the  Emperor  had 
attempted  to  set  up  over  the  whole  Monarchy  by  the 
Patent  of  1861. 

The  Reichsrat  that  was  created  by  the  constitution 
was  empowered  to  amend  it  by  a  two-thirds  vote  of  each 
of  the  two  chambers — the  Herrenhaus  and  the  Abgeord- 

Slovenes  divided  honors.  Carniola  was  occupied  almost  exclusively  by  Slo- 
venes. 1st  riii  was  divided  almost  equally  between  Italians  and  Serbo-Croats, 
neither  having  a  majority.  Dalmatia,  the  extreme  southwestern  tip  of  the 
crescent,  belonged  almost  wholly  to  the  Serbo-Croats. 


AUSTRIA 


249 


netenhaus.  In  this  manner  several  important  amendments 
were  adopted.  In  1873  the  power  of  electing  members 
of  the  Abgeordnetenhaus  was  taken  from  the  provincial 
diets  and  vested  in  the  voters  organized  into  four  classes — 
the  great  landowners,  the  cities,  the  chambers  of  com- 
merce and  industry,  and  the  rural  communes.  Elections 
were  thus  made  direct;  but  the  old  illiberal  class  system 
was  preserved  intact.  In  1896  a  fifth  class  of  general 
voters  was  established;  but  this  class  was  empowered  to 
elect  only  about  one-sixth  of  the  whole  number  of  deputies. 
In  1907,  however,  after  prolonged  agitation,  an  amend- 
ment was  at  length  adopted  which  abolished  the  class  sys- 
tem of  representation  and  introduced  approximate  man- 
hood suffrage.  It  also  redistributed  seats  not  only  among 
the  provinces  but  also  among  the  races;  for  provisions  were 
made  in  most  instances  that  resulted  in  separate  racial 
representations  in  the  mixed  provinces. 

It  was  hoped  that  the  liberalization  of  the  suffrage  would 
result  in  creating  an  assembly  divided  upon  economic  and 
social  issues  rather  than  upon  lines  of  race  and  nationality. 
But  this  hope  was  not  realized.  Interest  in  nationality 
proved  to  be  stronger  than  economic  class  interests.  The 
last  general  election  was  held  in  June,  1911.  The  results 
were  as  follows:  German  Nationalists,  100;  German 
Christian  Socialists,  73;  German  Social  Democrats,  49; 
United  Bohemian  Club  (Czechs),  84;  Bohemian  Social 
Democrats  (Czechs),  25;  Poles,  70;  Polish  Social  Demo- 
crats, 9;  Ukraine  Union  (Ruthenians),  28;  Croatio-Slavon- 
ian  Club  (Slovenes  and  Serbo-Croats),  27;  Dalmatians 
(Serbo-Croats),  7;  Uniolatina  (Italians),  21;  Independents, 
23. l  Practically  every  party  had  its  racial  designation. 
Even  the  members  of  the  Social  Democratic  party,  which 
ran  across  national  lines,  were  primarily  Germans,  Czechs, 
or  Poles,  and  only  secondarily  Social  Democrats. 

Little  can  be  related  here  concerning  the  manner  in 

figures  from  The  Statesman's  Yearbook,  1915,  p.  681. 


Amend- 
ments cf 
1873,  1806, 
and  1907 


Political 
parties  and 
races 


£50       NEW  CONSTITUTIONS  OF  EUROPE 


Difficulties 
for  Austria 
in  defeat 
or  victory 


War 

increased 
race 
antagonisms 


National 
aspirations 
in  1917 


which  the  shifting  events  of  the  World  War  operated  with 
disrupting  effect  upon  the  nationalities  embraced  within 
the  Austro-Hungarian  Monarchy.1  At  the  outbreak  of 
hostilities  there  was  an  unexpected  loyal  rally  of  the  races 
around  the  Hapsburg  dynasty.  But  it  was  certain  from 
the  outset  that  either  victory  or  defeat  would  have  far- 
reaching  practical  consequences  in  the  Dual  Monarchy. 
In  victory,  for  example,  any  possible  disposition  of  Russian 
Poland  (whether  it  was  joined  to  the  German  Poland  of 
Prussia,  or  to  the  Austrian  Poland  of  Galicia,  or  was 
erected  into  a  nominally  independent  kingdom)  would 
create  a  serious  political  problem  for  Austria.  The  an- 
nexation of  Serbia  would  be  opposed  by  the  Magyars  of 
Hungary  because  they  wanted  no  more  Jugoslav  terri- 
tory. And  needless  to  say  Hungary  would  bitterly  oppose 
any  arrangement  which  joined  her  with  Austria  in  sub- 
ordination to  a  Mittel-Europa  dominated  by  Germany. 
To  the  Austro-Hungarian  victors  would  belong  the  em- 
barrassments. 

But  apart  from  the  embarrassments  of  possible  victory, 
which  more  than  once  seemed  imminent,  there  were  nu- 
merous events  that  increased  the  antagonism  of  race 
toward  race.  German  Austrians  did  not  win  the  affection 
or  confidence  of  the  Poles  and  Ruthenes  by  the  reception 
they  gave  to  refugees  from  the  Galician  theatre  of  action. 
As  the  food  shortage  became  more  and  more  acute,  the 
German  Austrians  furiously  resented  the  internal  "hunger 
blockade"  established  by  Hungary,  the  principal  food 
producer  of  the  Monarchy.  Ruthless  suppression  and 
imprisonment  affected  all  the  minor  races  adversely. 

In  most  of  the  countries  at  war,  parliaments  took  a 
back  seat  during  the  period  of  hostilities.  But  in  Austria 
parliament  disappeared  entirely.  Prorogued  early  in 
1914,  the  Reichsrat  was  not  convoked  for  more  than  three 


1See  Temperley,  Ed.,  A  History  of  the  Peace  Conference  of  Paris,  Vol.  IV,  pp. 
2&-118,  462-484  (London,  1921). 


AUSTRIA 


251 


years.  It  was  the  outbreak  of  the  Russian  Revolution, 
which  could  not  fail  to  make  a  profound  impression  in 
the  Dual  Monarchy,  that  led  to  its  reassembly  on  May 
30,  1917.  At  once  the  spokesmen  of  the  subject  races 
came  forward  with  programs  of  national  aspiration  that 
struck  at  the  very  foundations  of  the  state.  Through  the 
remaining  months  of  1917  and  the  first  half  of  1918  there 
were  seething  discussions  and  negotiations  concerning  the 
conditions  of  settlement.  And  the  difficulties  were  only 
increased  by  the  cession  of  Russian  territories  to  the 
Central  Powers  under  the  Treaty  of  Brest-Litovsk  of 
March  3,  1918.  It  is  highly  improbable,  however,  that 
any  attempt  to  remake  Austria-Hungary  from  within 
could  ever  have  been  successfully  effected. 

At  different  dates  during  the  summer  of  1918  France, 
Great  Britain,  and  the  United  States  recognized  the 
belligerency  or  independence  of  the  Czechoslovaks;  and 
thereafter  the  Slav  deputies  in  the  Austrian  Reichsrat 
openly  defied  the  Government.  In  the  event  of  Allied 
victory,  the  Jugoslavian,  Italian,  and  Rumanian  parts  of 
Austria-Hungary  were,  by  treaties  and  engagements, 
already  negotiated  to  Serbia,  Italy,  and  Rumania  respec- 
tively. On  September  29,  1918,  Bulgaria  signed  an 
armistice  with  the  Allies  which  was  in  effect  complete 
surrender.  This  was  the  beginning  of  the  end.  At  the 
opening  of  the  Austrian  Reichsrat  three  days  later,  Prime 
Minister  Hussarek  delivered  a  pathetically  ludicrous  ad- 
dress about  "setting"  the  Austrian  "house  in  order"  and 
"considering  and  solving  the  problem  of  autonomy  for  the 
different  nationalities."  Mere  autonomy  within  the 
Monarchy  was  now  hopelessly  anachronous.  The  Mon- 
archy was  doomed,  as  were  its  coequal  parts,  the  Empire 
and  the  Kingdom. 

On  October  4,  Germany,  Austria-Hungary,  and  Turkey 
offered  to  negotiate  peace  upon  the  basis  of  President 
Wilson's  "fourteen  points"  and  subsequent  addresses. 


Recognition 
of  Czecho- 
slovakia, 
1918 


The  Mon- 
archy 
doomed 


252       NEW  CONSTITUTIONS  OF  EUROPE 


President 
Wilson  and 
the  Austro- 
Hungarian 
Government 


Disintegra- 
tion 


Creation  of 
German- 
Austria 


On  October  8,  President  Wilson  asked  the  German  Chan- 
cellor whether  he  was  "speaking  merely  for  the  constituted 
authorities  of  the  Empire."  By  wholly  ignoring  the 
Austro-Hungarian  Government  he  clearly  indicated  that 
he  regarded  that  government  as  incompetent  to  speak 
for  its  peoples.  Thereupon  a  panicky  attempt  was  made 
to  create  a  coalition  cabinet  that  would  be  somewhat 
representative  of  the  various  nationalities.  But  the 
Czechs  and  other  nationalities  refused  to  be  led  into  such  a 
trap.  There  were  evidences  also  that  Hungary  was  ready 
to  scuttle  the  sinking  Austrian  ship  in  the  hope  of  appear- 
ing herself  in  the  guise  of  a  submerged  and  oppressed 
nationality. 

On  October  16,  an  imperial  manifesto  proclaimed  that 
"Austria,  in  accordance  with  the  will  of  her  nationalities, 
is  to  become  a  federal  state  in  which  every  nationality 
within  its  territory  forms  its  own  commonwealth."  On 
the  same  day  Prime  Minister  Wekerle  declared  in  the 
Hungarian  parliament  that  the  Union  between  Austria 
and  Hungary  would  thereafter  be  only  a  personal  union. 
But  the  Czechs  and  Jugoslavs  in  Austria  replied  with  a 
declaration  in  favor  of  the  settlement  of  their  status  by 
the  general  Peace  Conference;  while  the  Rumanians  and 
Slovaks  of  Hungary  denied  the  authority  of  the  Hungarian 
Government  to  speak  for  them. 

President  Wilson's  note  of  October  18,  published  in 
Austria  three  days  later,  in  effect  demanded  as  a  condition 
for  the  negotiation  of  peace  the  independence  of  the 
Czechoslovaks  and  of  the  Jugoslavs.  On  the  same  day, 
October  18,  the  Czechoslovak  National  Council,  sitting 
in  Paris,  declared  the  independence  of  Czechoslovakia 
and  constituted  itself  the  provisional  government  of  the 
country.  The  German  members  of  the  Austrian  Abgeord- 
netenhaus,  realizing  that  the  end  was  at  hand,  and  ignor- 
ing both  the  Dual  Monarchy  and  the  Austrian  Empire, 
constituted  themselves  a  provisional  national  assembly 


AUSTRIA 


253 


to  represent  the  German-Austrian  people  at  the  peace 
table. 

The  old  Government  still  clung  to  the  fast-fading  shadow 
of  existence.  Thin  meetings  of  the  Reichsrat  were  occa- 
sionally held.  The  Hussarek  Ministry  in  Austria  gave 
way  to  a  sort  of  post-mortem  Ministry  formed  by  Lam- 
masch.  Count  Burian,  Minister  of  Foreign  Affairs  of  the 
Dual  Monarchy,  resigned,  and  Count  Andrassy  succeeded 
him  upon  the  legally  correct  but  factually  absurd  theory 
that  "until  the  Act  of  1867  is  changed,  nothing  but  a 
Common  Ministry  of  Foreign  Affairs  is  conceivable  or 
possible."  A  well-nigh  grotesque  situation  followed. 
For  almost  immediately  Andrassy  dispatched  to  Wash- 
ington a  note  accepting  for  the  Dual  Monarchy  the 
conditions  of  independence  for  Czechoslovakia  and  Jugo- 
slavia. In  other  words,  Austria-Hungary  accepted  con- 
ditions which  were  practically  incompatible  with  the 
continuance  of  its  own  existence.  Thereafter,  not  even 
legal  objections  could  be  raised  against  the  revolutionary 
process  of  establishing  independent  governments  in  these 
sections  of  the  defunct  Monarchy.  There  might  be, 
indeed,  as  there  were,  serious  questions  hi  respect  to 
boundaries.  But  the  existence  of  an  Austrian  state 
narrowly  confined  to  territory  occupied  almost  exclusively 
by  German-Austrians  was  in  fact  determined  by  events 
external  to  the  new  state  itself. 

Under  the  census  of  January  31,  1920,  the  new  Austria, 
geographically  compact,  has  a  population  of  between  six 
and  seven  millions — approximately  one-fourth  of  the 
population  of  the  former  crescent-shaped  Austrian  Empire. 
It  embraces  seven  of  the  old  provinces,  from  several  of 
which,  however,  large  or  small  sections  were  clipped  in 
favor  of  neighboring  states.1  About  3,000,000  German- 
Austrians  are  included  within  these  neighboring  states. 


The  end  of 
Austria- 
Hungary 


The  new 
Austria 


1Lower  Austria,  Upper  Austria,  Salzburg,  Tyrol,  Vorarlberg,  Styria,  Carin- 
thia. 


The 

Provisional 
National 
Assembly 


The 

constituent 
assembly 
of  1919 


254       NEW  CONSTITUTIONS  OF  EUROPE 

It  embraces  also  an  eighth  state,  Burgenland,  or  German 
West  Hungary,  carved  out  of  territory  formerly  Hun- 
garian. 

When  the  Austrian  Provisional  National  Assembly, 
consisting  of  the  German  members  of  the  old  Abgeord- 
netenhaus,  met  on  October  30,  it  immediately  adopted  a 
provisional  constitution  establishing  a  republican  form  of 
government.1  It  was,  therefore,  merely  a  tardy  gesture 
when  the  Emperor  on  November  11  issued  a  proclamation 
renouncing  his  right  to  participate  in  Austrian  affairs. 
The  provisional  constitution  vested  legislative  and  execu- 
tive powers  in  the  Provisional  National  Assembly  and 
provided  for  the  exercise  of  executive  powers  by  a  Staats- 
rat  or  committee  of  its  own  members.  On  this  committee 
the  three  parties,  Christian  Socialists,  German  National- 
ists, and  Social  Democrats,  were  proportionally  repre- 
sented. This  Staatsrat,  in  turn,  nominated  the  members 
of  a  Cabinet,  who  functioned  as  the  heads  of  the  several 
departments.  The  scope  of  powers  of  the  Provisional 
National  Assembly  was,  however,  somewhat  indefinite; 
for  revolutionary  assemblies  growing  out  of  the  old  diets 
of  the  provinces  arose  to  contest  the  power  of  the  central 
assembly.  Moreover,  the  old  complicated  system  of  par- 
allel imperial  and  provincial  administration,  which  had 
been  a  source  of  continuous  embarrassment  and  friction, 
gave  way  to  a  decentralized  system  in  which  administra- 
tive services,  carried  on  by  the  several  provinces,  were  sub- 
ject to  central  control  only  in  theory. 

The  provisional  constitution  made  provision  for  the 
call  of  a  constituent  assembly  to  draft  a  permanent  con- 
stitution. An  electoral  law  was  enacted  which  provided 
for  the  election  of  225  delegates  in  38  districts,  on  the  basis 


Tor  the  text  and  a  discussion  of  the  resolution  (Staatsgesetzblatt,  1918,  No.  1), 
see  Kelsen,  Dw  Verfassungsgesetze  der  Republik  Deutschosterreich,  Part  I,  pp. 
11-28.  For  the  text  and  a  discussion  of  the  law  of  November  12,  1918,  in  re- 
spect to  the  form  of  the  state  and  the  government  (Slaatsgesetzblatt,  1918,  No. 
5),  see  ibid.,  Part  I,  pp.  29-40. 


AUSTRIA 


255 


of  equal,  secret,  direct,  and  universal  suffrage  without  dis- 
tinction of  sex,  and  according  to  the  principles  of  propor- 
tional representation.1  The  elections  took  place  on 
February  16,  1919.  No  elections  were  held  in  certain 
territories  which  were  claimed  by  Austria  but  were  ac- 
tually occupied  by  Czechoslovakia,  Jugoslavia,  and 
Italy.  In  consequence  only  170  delegates  were  returned. 
Of  these  72  were  Social  Democrats,  69  were  Christian 
Socialists,  26  were  German  Nationalists,  and  3  were  scat- 
tered. 

The  constituent  assembly  met  on  March  4,  1919.  Its 
first  task  was  to  make  certain  important  alterations  in 
the  provisional  constitution.2  The  Staatsrat  was  abol- 
ished, and  certain  changes  were  made  in  the  relations  of 
the  Cabinet  to  the  assembly.  But  the  most  important 
change  effected  was  in  the  direction  of  curbing  the  powers 
of  the  provisional  governments  of  the  provinces.  While 
the  permanent  constitution  was  in  the  making,  the  con- 
stituent assembly  also  engaged  in  a  considerable  amount 
of  lawmaking  and  otherwise  carried  on  the  affairs  of  gov- 
ernment for  a  people  living  under  appalling  circumstances 
of  near-starvation  and  general  economic  misery.  At 
Easter  and  again  in  June  there  were  outbursts  of  violence 
in  Vienna.  But  for  the  most  part  the  revolutionary 
passing  from  the  old  to  the  new  order  was  pacific. 

The  Treaty  of  St.  Germain  (September  10,  1919)  ne- 
cessitated a  redefinition  of  some  of  the  frontiers  of  Austria, 
the  substitution  of  the  "Republic  of  Austria"  for  the  name 
"German-Austria,"  and  a  repeal  of  the  constitutional 
declaration:  "German- Austria  is  a  constituent  part  of 
the  German  Reich."  The  provisional  constitution,  as 
amended  in  important  particulars  by  the  constituent 
assembly,  formed  the  basis  upon  which  the  assembly 

*For  the  text  and  a  discussion  of  the  laws  relating  to  the  constituent  assembly 
(Siaatsgesetzblatt,  1918,  Nos.  114,  115)  see  Kelsen,  op.  cii.,  Part  II,  pp.  1-9, 10-131. 

2For  these  laws  and  discussions  thereof  (StaatsgesdzMatt,  1919,  Nos.  179, 
180),  see  ibid.,  Part  III,  pp.  121-140,  141-160. 


Changes  in 
the 

provisional 
government 


Changes 
required  by 
Treaty  of 
St.  Germain 


256       NEW  CONSTITUTIONS  OF  EUROPE 

worked  out  the  permanent  constitution.  The  chief  obsta- 
cle that  was  encountered  was  the  application  of  the  federal 
principle  with  due  regard  on  the  one  hand  for  the  im- 
perative needs  of  centralization  and  on  the  other  for  the 
autonomous  rights  that  were  demanded  by  the  states.1 
Decentralization  was  the  order  of  the  day  even  within  the 
strictly  German  parts  of  the  disintegrated  Empire. 

The  constituent  assembly  governed  in  Austria  for  more 
constitution  than  eighteen  months.  The  permanent  constitution  did 
of  1920  not  g0  jnto  effect  untii  October  1,  1920.  Elections  under 

the  new  constitution  were  held  on  October  17;  and  on 
December  8,  the  first  President,  Dr.  Michael  Hainisch, 
was  elected  by  the  joint  assembly  of  the  two  houses. 
Thus  was  the  new  permanent  government  formally 
launched.2 

2.  CONSTITUTION  OF  AUSTRIA 

Act  of  October  1,  1920,  by  which  the  Austrian  Republic  is  es- 
tablished as  a  Federal  State. 

(Federal  Constitutional  Law) 
The  Constituent  Assembly  has  resolved: 

CHAPTER  I 

GENERAL  PROVISIONS 

Article  1.  Austria  is  a  democratic  republic.  The  will  of 
the  people  is  the  foundation  of  its  laws. 

Art.  2.     (1)  Austria  is  a  Federal  State  (Bundesstaat). 

(2)  The  Federal  State  is  composed  of  the  autonomous  states3 
of  Burgenland,  Carinthia,  Lower  Austria  (state  of  Lower  Austria 

'See  above,  pp.  62,  74  ff. 

^he  text  of  the  constitution,  which  follows,  is  a  translation  .of  the  original 
German  text  contained  in  Bundesgesetzblatt  fur  die  Republik  Osterreich,  1920, 
p.  1.  It  has  been  compared  to  some  extent  with  an  anonymous  French  transla- 
tion found  in  Revue  du  drait  public  et  de  la  science  politique,  Vol.  38,  No.  2,  April- 
May-June,  1921,  p.  261.  In  the  rendering  of  the  English  version  presented 
herewith,  the  authors  are  under  special  obligation  to  Mr.  Riidiger  Bilden. 

3Lander  is  translated  "states."     See  above,  p.  176,  note  2. 


AUSTRIA  257 

and  city  of  Vienna),  Upper  Austria,  Salzburg,  Styria,  Tyrol, 
and  Vorarlberg. 

Art.  3.  (1)  The  territory  of  the  Federal  State  consists  of  the 
territories  of  the  Austrian  states. 

(2)  Alteration  of  federal  boundaries,  affecting  also  the  boun- 
daries of  a  state,  as  well  as  alteration  of  state  boundaries  within 
the  federal  territory  may  take  place — except  as  provided  by 
peace  treaties — only  by  concurrent  constitutional  laws  of  the 
Federal  State  and  the  state  affected  thereby. 

(3)  Separate  provisions  for  the  state  of  Lower  Austria  and 
the  City  of  Vienna  are  included  in  the  fourth  chapter. 

Art.  4.  (1)  The  federal  territory  forms  a  uniform  currency, 
economic,  and  customs  zone. 

(2)  Customs  zones  or  other  restrictions  on  communications 
may  not  be  established  within  the  federal  territory. 

Art.  5.  Vienna  shall  be  the  federal  capital  and  the  seat  of 
the  highest  federal  authorities. 

Art.  6.  (1)  There  shah1  be  a  state  citizenship  for  each  state. 
Domicile  (HeimatrecM)  in  a  municipal  district  (Gemeinde)  of 
the  state  shall  be  a  condition  for  state  citizenship.  The  condi- 
tions for  the  acquisition  and  loss  of  state  citizenship  shall  be 
the  same  in  every  state. 

(2)  Federal  citizenship  shall  be  acquired  on  the  basis  of  state 
citizenship. 

(3)  Every  Austrian  citizen  shall  have  in  every  state  equal 
rights  and  duties  with  the  citizens  of  that  state. 

Art.  7.  (1)  All  Austrian  citizens  are  equal  before  the  law. 
Privileges,  based  upon  birth,  sex,  rank,  class,  or  religious  belief 
are  abolished. 

(2)  All  public  employees,  including  the  members  of  the  federal 
army,  shall  be  guaranteed  the  unrestricted  exercise  of  their 
political  rights. 

Art.  8.  The  official  language  of  the  Republic  shall  be  Ger- 
man, without  prejudice  to  the  rights  conceded  by  federal  law 
to  foreign-language  minorities. 

Art.  9.  The  universally  recognized  rules  of  international  law 
are  accepted  as  integral  parts  of  the  law  of  the  Austrian  Republic. 

Art.  10.  The  Federal  State  shall  have  powers  of  legislation 
and  execution  in  respect  to  the  following  matters: 

(a)  The  federal  constitution,  especially  elections  to  the 

Nationalrat,  and  popular  suffrage  by  virtue  of  the  federal 

constitution;  jurisdiction  in  regard  to  the  constitution. 


258       NEW  CONSTITUTIONS  OF  EUROPE 

(b)  Foreign  relations,  including  political  and  commercial 
representation  in  relations  with  foreign  countries,  in  particular 
the  conclusion  of  all  treaties,  marking  out  of  boundaries,  traffic 
in  goods  and  live  stock  with  foreign  countries,  and  customs. 

(c)  Regulation  and  supervision  of  entrance  into  and  depart- 
ure from  the  federal  territory;  immigration  and  emigration; 
passports,  deportation,  removal,  expulsion,  and  extradition 
from  or  through  the  federal  territory. 

(d)  Federal  finance,  especially  taxes  to  be  collected  exclu- 
sively or  in  part  for  the  federal  treasury;  monopolies. 

(e)  Currency;  credit,  produce,  and  stock  exchanges;  bank- 
ing; weights  and  measures;  standards  and  assaying. 

(f)  Civil  law,  including  the  law  of  economic  associations; 
criminal  law  with  the  exception  of  administrative  criminal  law 
and  administrative  criminal  procedure  in  matters  which  come 
within  the  autonomous  jurisdiction  of  the  states;  administra- 
tion of  justice;  administrative  jurisdiction;  copyright;  the 
press;  expropriation  not  pertaining  to  specific  matters  within 
the  autonomous  jurisdiction  of  the  states;  matters  pertaining 
to  public  notaries,  lawyers,  and  related  professions. 

(g)  The  right  of  association  and  the  right  of  assembly. 

(h)  Commerce  and  industry;  suppression  of  unfair  competi- 
tion; patents  and  protection  of  patterns,  trademarks,  and 
other  commercial  designations;  matters  pertaining  to  patent 
lawyers;  engineering  and  consulting  engineering;  chambers  of 
commerce,  trade,  and  industry. 

(i)  Traffic  by  rail,  water,  and  air;  matters  concerning  roads 
declared  by  federal  law  to  be  federal  highways  on  account  of 
their  importance  in  intercommunication;  police  authority 
over  watercourses  and  navigation;  posts,  telegraphs,  and 
telephones. 

(j)  Mining;  regulation  and  maintenance ( of  all  waters  used 
for  navigation  or  rafting  or  suitable  for  such  use,  and  of  such 
waters  as  form  a  boundary  with  foreign  countries  or  between 
states,  or  which  flow  through  two  or  more  states;  construction 
and  maintenance  of  those  waterways  which  connect  the  inland 
with  foreign  countries  or  connect  several  states;  general  tech- 
nical measures  for  adequate  utilization  of  water  power,  exclu- 
sive of  agricultural  and  small  industrial  plants:  standardiza- 
tion and  systematization  of  electrical  establishments  and 
plants,  safety  measures  in  this  field;  right  of  way  for  electric 
power  transmission  in  so  far  as  the  transmission  extends  across 


AUSTRIA  259 

the  boundaries  of  two  or  more  states;  steam  boilers  and  power 
engines;  surveying. 

(k)  Labor  law  and  protection  of  workers  and  other  em- 
ployees not  engaged  in  agriculture  or  forestry;  social  insurance 
and  contract  insurance. 

(1)  Public  health,  exclusive  of  the  disposal  or  burial  of  the 
dead,  as  well  as  of  the  municipal  sanitation  and  life-saving  ser- 
vice; but  only  sanitary  supervision  over  hospitals  and  sana- 
toria, health  resorts,  and  watering  places;  veterinary  regula- 
tions; foodstuffs  including  food  control. 

(m)  Scientific  and  technical  archives  and  libraries;  artistic 
and  scientific  collections  and  institutions;  protection  of  monu- 
ments; matters  pertaining  to  religion;  census  and  other  sta- 
tistics not  solely  in  the  interest  of  one  state;  endowments  and 
foundations  not  intended  to  serve  the  interest  of  only  one 
state  and  not  hitherto  autonomously  administered  by  the 
states. 

(n)  Federal  police  and  federal  gendarmerie. 

(o)  Military  affairs;  war  indemnities  and  care  of  discharged 
soldiers  and  their  dependents;  such  measures  occasioned  by 
or  in  consequence  of  a  war  as  are  necessary  to  safeguard  the 
uniform  administration  of  economic  affairs,  especially  the 
supply  of  necessities  to  the  population. 

(p)  Creation  of  federal  authorities  and  other  federal  officers ; 
law  of  the  federal  public  service. 

Art.  11.  (1)  The  Federal  State  shall  have  the  power  of 
legislation,  but  the  states  shall  have  the  power  of  execution  in 
respect  to  the  following  matters: 

(a)  Citizenship  and  domiciliary  rights  (Heimatrecht),  vital 
statistics,  including  registration  and  change  of  name;  police 
supervision  of  aliens. 

(b)  Professional  associations  not  included  in  Article  10,  but 
exclusive  of  those  pertaining  to  agriculture  and  forestry. 

(c)  Public  agencies  and  private  brokerages. 

(d)  Taxes  not  collected  exclusively  or  partially  for  the  fed- 
eral treasury;  provisions  for  the  prevention  of  double  taxation 
and  other  excessive  levies;  for  the  prevention  of  obstructions 
to  foreign,  interstate,  or  domestic  traffic  or  economic  relations; 
for  the  prevention  of  excessive  levies  on  public  communica- 
tions or  institutions,  or  levies  which  interfere  with  commu- 
nication; and  for  the   prevention   of   prejudice   to  federal 
finance. 


260       NEW  CONSTITUTIONS  OF  EUROPE 

(e)  Ammunition,  projectiles,  and  explosives,  not  subject 
to  monopoly,  as  well  as  the  manufacture  of  arms;  motor 
vehicles. 

(f)  Housing. 

(g)  Administrative  procedure  and  administrative  criminal 
procedure  including  execution,  and  the  general  provisions  of 
administrative  criminal  law,  even  in  matters  in  which  the 
states  have  the  power  of  legislation. 

(2)  Ordinances  for  the  execution  of  the  laws  provided  for  in 
Paragraph  1  shall  be  issued  by  the  Federal  State,  unless  other- 
wise provided  by  such  laws. 

Art.  12.  (1)  The  Federal  State  shall  have  the  power  of 
legislation  as  to  fundamental  principles,  but  the  states  shall 
have  the  power  of  supplementary  legislation  and  the  power  of 
execution  in  respect  to  the  following  matters : 

(a)  Organization  of  administration  in  the  states. 

(b)  Poor  relief;  problems  of  population;  public  sanatoria; 
protection  of  maternity,  infancy,  and  adolescence;  hospitals 
and  sanatoria;  health  resorts  and  watering  places. 

(c)  Institutions  such  as  penitentiaries  and  workhouses,  or 
institutions  of  a  similar  character  for  the  protection  of  society 
against  criminals,  vagrants,  and  other  dangerous  persons;  de- 
portation and  expulsion  from  one  state  to  another. 

(d)  Public  institutions  for  the  extra-judicial  adjustment  of 
controversies. 

(e)  Labor  law  and  protection  of  workers  and  other  em- 
ployees in  agriculture  and  forestry. 

(f)  Land  reform,  including  especially  agrarian  reform  and 
recolonization. 

(g)  Forestry    including   pasturage,    protection   of   plants 
against  disease  or  injury. 

(h)  Electricity  and  water  rights  not  included  in  Article  10. 
(i)  Building  regulations  (Bauwesen). 

(j)  Law  of  the  public  service  concerning  employees  of  the 
states  performing  official  duties. 

(2)  Final  decision  in  matters  pertaining  to  land  reform  (Para- 
graph 1,  Clause  F)  shall  be  vested  in  a  commission  appointed 
by  the  Federal  State  and  consisting  of  judges,  administrative 
officials,  and  experts. 

Art.  13.  (1)  The  Federal  State  shall  have  powers  of  legisla- 
tion and  execution  to  determine  what  taxes  shall  belong  to  the 


AUSTRIA  261 

Federal  State,  the  states,  or  the  municipal  districts  (Gemeinde); 
to  determine  the  shares  of  the  states  or  municipalities  in  the 
revenues  of  the  Federal  State;  and  to  determine  the  contribu- 
tions and  allowances  from  the  federal  treasury  for  state  or  muni- 
cipal expenditures. 

(2)  The  states  shall  have  power  of  legislation  and  execution 
to  determine  what  state  taxes  shall  be  allocated  to  the  municipal 
districts;  to  determine  the  shares  of  the  municipal  districts  in 
the  revenues  of  the  states;  and  to  determine  the  contributions 
and  allowances  from  the  treasuries  of  the  states  to  the  expendi- 
tures of  the  municipal  districts. 

Art.  14.  A  special  federal  constitutional  law  shall  regulate 
the  scope  of  action  of  the  Federal  State  and  the  states  in  regard 
to  schools,  education,  and  popular  instruction. 

Art.  15.  (1)  In  so  far  as  a  subject  matter  has  not  been  spe- 
cifically assigned  by  the  federal  constitution  to  the  Federal 
State  as  to  legislation  or  execution,  it  shall  remain  within  the 
the  autonomous  sphere  of  action  of  the  states. 

(2)  In  so  far  as  the  power  of  legislation  has  been  reserved  to 
the  Federal  State  only  as  to  fundamental  principles,  the  states 
shall  have  the  power  of  supplementary  legislation  within  the 
scope  determined  by  federal  law.     Federal  law  may  fix  a  period 
of  time  for  the  enactment  of  supplementary  legislation  which, 
without  the  consent  of  the  Bundesrat,  shall  not  be  less  than  six 
months  nor  more  than  one  year.     If  a  state  does  not  observe 
this  period  of  time,  the  power  of  supplementary  legislation  for 
such  state  shall  be  transferred  to  the  Federal  State.     With  the 
enactment  by  the  state  of  a  supplementary  law,  the  federal 
supplementary  law  shall  cease  to  be  in  force. 

(3)  If  an  act  of  execution  on  the  part  of  a  state  in  the  sub- 
jects covered  by  Articles  11  and  12  shall  be  effective  for  several 
states,  such  states  shall  take  steps  first  to  reach  an  agreement 
thereon.     If  they  fail  to  agree,  the  power  of  performing  such  an 
act  shall,  on  application  of  one  of  these  states,  be  transferred 
to  the  competent  federal  minister.     Detailed  regulations  may 
be  prescribed  by  federal  laws  in  accordance  with  Articles  11 
and  12. 

(4)  The  Federal  State  shall  have  the  right  to  supervise  the 
execution  of  the  regulations  issued  by  the  Federal  State  in  re- 
spect to  such  subjects  as  are  reserved  for  legislation  by  the 
Federal  State  in  accordance  with  Articles  11  and  12. 

(5)  The  states  shall  be  empowered  within  the  scope  of  their 


262       NEW  CONSTITUTIONS  OF  EUROPE 

legislative  authority  to  issue  all  regulations  necessary  for  en- 
forcement, even  in  the  province  of  criminal  and  civil  law. 

Art.  16.  (1)  The  states  shall  be  obliged  to  take  whatever 
measures  are  necessary  within  their  autonomous  sphere  of  action 
for  the  execution  of  treaties;  if  a  state  does  not  comply  with 
this  obligation  hi  due  time  the  Federal  States  shall  be  vested 
with  the  power  to  take  such  measures,  and  especially  to  enact 
the  necessary  laws. 

(2)  Likewise,  the  Federal  State,  when  carrying  out  treaties 
with  foreign  states,  shall  have  the  right  of  supervision  even  in 
regard  to  such  matters  as  come  within  the  autonomous  sphere  of 
action  of  the  states.  In  this  case  the  Federal  State  shall  have 
the  same  rights  over  against  the  states  as  in  matters  of  indirect 
federal  administration. 

Art.  17.  (1)  The  provisions  of  Articles  10-15  in  respect  to 
the  powers  of  legislation  and  execution  shall  in  no  way  affect 
the  status  of  the  Federal  State  in  the  matter  of  its  private  rights. 

(2)  In  all  these  legal  relations  the  legislation  of  a  state  shall 
never  affect  the  Federal  State  more  disadvantageously  than  it 
affects  the  state  itself. 

Art.  18.  (1)  The  entire  public  administration  must  be  con- 
ducted in  accordance  with  the  laws. 

•(2)  Within  the  limits  of  the  laws  every  administrative  author- 
ity may  issue  ordinances  in  its  own  sphere  of  action. 

Art.  19.  (1)  The  supreme  executive  authority  of  the  Federal 
State  shall  be  entrusted  to  commissioners  of  the  people  chosen  by 
the  assemblies  of  representatives  of  the  people  in  the  Federal 
State  and  in  the  states.  The  commissioners  of  the  people  shall 
be  the  Federal  President,  the  federal  ministers,  the  secretaries  of 
state,  and  the  members  of  the  state  governments. 

(2)  The  transaction  of  business  by  the  commissioners  of  the 
people  shall  be  under  the  supervision  of  the  assembly  by  which 
they  are  chosen. 

(3)  They  may  be  called  before  the  Supreme  Constitutional 
Court  (Verfassungsgerichtshof)  to  account  for  their  actions  and 
omissions,  in  so  far  as  the  federal  constitution  or  the  state  con- 
stitutions provide. 

Art.  20.  Under  the  direction  of  the  commissioners  of  the 
people,  agencies  elected  for  a  certain  period  or  appointed  pro- 
fessional agencies  shall  conduct  the  federal  or  state  administra- 
tion in  accordance  with  the  laws.  They  shall  be  bound  by  the 
directions  of  the  commissioners  of  the  people,  who  are  their 


AUSTRIA  263 

superiors,  and  shall  be  responsible  to  them  for  the  exercise  of 
their  office,  unless  the  federal  constitution  or  the  state  constitu- 
tions otherwise  provide. 

Art.  21.  (1)  The  law  of  the  public  service,  including  the 
salary  scale  and  the  power  of  discipline  over  employees  of  the 
Federal  State  and  of  the  states  performing  official  tasks,  shall 
be  regulated  by  federal  law  according  to  uniform  principles. 
(Article  10,  Clause  P,  and  Article  12,  Clause  J.)  This  law  shall 
also  contain  provisions  determining  the  extent  to  which  repre- 
sentatives of  employees  may  participate  in  the  regulation  of  the 
rights  and  duties  of  such  employees  without  prejudice  to  the 
supreme  control  of  service  on  the  part  of  the  Federal  State 
and  the  states. 

(2)  The  federal  commissioners  of  the  people  shall  have  the 
supreme  control  of  service  over  employees  of  the  Federal  State; 
the  state  commissioners  of  the  people  shall  have  the  supreme 
control  of  service  over  employees  of  the  states. 

(3)  The  appointment  of  employees  of  local  or  territorial 
municipalities  who  perform  official  tasks,  and  the  law  of  the 
public  service  concerning  such  employees,  shall  be  regulated  in 
connection  with  the  organization  of  the  administration. 

(4)  Public  employees  shall  always  be  guaranteed  the  pos- 
sibility  of    an   interchange   of   service   between   the   Federal 
State,  the  states,  and  the  municipalities.     Change  of  service 
shall  take  place  with  the  consent  of  the  authorities  authorized 
to  exercise  the  supreme  control  of  service.     Special  arrange- 
ments to  facilitate  interchange  of  service  may  be  made  by  fed- 
eral law. 

(5)  Titles  of  office  for  the  agencies  of  the  Federal  State,  the 
states,  or  the  municipalities  may  be  regulated  in  a  uniform  man- 
ner by  federal  law.     They  shall  be  protected  by  law. 

Art.  22.  All  agencies  of  the  Federal  State,  the  states,  or  the 
municipalities  must  render  mutual  assistance  to  one  another 
within  scope  of  their  lawful  authority. 

Art.  23.  (1)  All  persons  entrusted  with  functions  of  federal, 
state,  or  municipal  administration,  or  with  judicial  functions, 
shall  be  liable  for  any  injury  inflicted  on  any  third  party  through 
intentional  or  grossly  negligent  violation  of  the  law  in  the  ex- 
ercise of  their  office.  The  Federal  State,  the  states,  or  the  muni- 
cipalities shall  be  liable  for  violations  of  the  law  on  the  part 
of  persons  in  their  service. 

(2)  Detailed  regulations  shall  be  prescribed  by  federal  law. 


264       NEW  CONSTITUTIONS  OF  EUROPE 

CHAPTER  II 

FEDERAL  LEGISLATION 
A.  The  Nationalrat 

Art.  24.  The  power  of  legislation  of  the  Federal  State  shall 
be  exercised  by  the  Nationalrat,  elected  by  the  entire  Austrian 
people,  with  the  concurrence  of  the  Bundesrat,  elected  by  the 
Landtags. 

Art.  25.  (1)  The  seat  of  the  Nationalrat  shall  be  the  federal 
capital,  Vienna. 

(2)  For  the  duration  of  a  period  of  extraordinary  conditions, 
the  Federal  President,  at  the  request  of  the  Federal  Ministry, 
may  call  the  Nationalrat  together  in  any  other  place  in  the  fed- 
eral territory. 

Art.  26.  (1)  The  Nationalrat  shall  be  elected  according  to  the 
principles  of  proportional  representation  by  the  equal,  direct, 
secret,  and  personal  suffrage  of  all  Austrian  men  and  women 
who  are  more  than  twenty  years  of  age  before  the  first  of  Janu- 
ary of  the  year  of  the  election. 

(2)  The  federal  territory  shall  be  divided  within  the  state 
boundaries  into  contiguous  election  districts.     A  number  of 
deputies  shall  be  allowed  to  the  qualified  voters  of  an  election 
district  (electoral  body)  in  proportion  to  the  number  of  citizens 
in  the  election  districts;  that  is,  the  number  of  Austrian  citizens 
who  in  accordance  with  the  results  of  the  last  census  had  their 
domicile  in  the  election  districts.     A  division  of  the  voters  into 
other  electoral  bodies  shall  not  be  permissible. 

(3)  Election  day  must  be  a  Sunday  or  other  public  holiday. 

(4)  Every  qualified  voter  who  is  more  than  twenty-four  years 
of  age  before  the  first  of  January  of  the  year  of  the  election,  shall 
be  eligible  for  election. 

(5)  Denial  of  the  right  to  vote  or  to  be  elected  may  result 
only  from  a  judicial  conviction  or  decree. 

Art.  27.  (1)  The  Nationalrat  shall  be  elected  for  a  four-year 
term,  computed  from  the  day  of  its  first  meeting,  but  continuing 
to  the  day  on  which  the  new  Nationalrat  meets. 

(2)  The  newly  elected  Nationalrat  must  be  called  together  by 
the  Federal  President  no  later  than  the  thirtieth  day  after  the 
election.  The  election  must  be  arranged  by  the  Federal  Min- 
istry in  such  a  manner  as  to  enable  the  newly  elected  Nationalrat 


AUSTRIA  265 

to  meet  on  the  day  after  the  expiration  of  the  four  year  term  of 
the  old  Nationalrat. 

Art.  28.  The  Nationalrat  may  be  adjourned  only  by  its  own 
resolution.  It  shall  reassemble  at  the  call  of  its  President.  He 
must  call  the  Nationalrat  together  immediately  if  at  least  one- 
fourth  of  its  members  or  if  the  Federal  Ministry  demands  it. 

Art.  29.  Before  the  expiration  of  its  term  the  Nationalrat 
may  by  simple  law  decree  its  own  dissolution.  In  such  case  also 
its  term  shall  last  until  the  newly  elected  Nationalrat  meets. 

Art.  30.  (1)  The  Nationalrat  shall  choose  from  among  its 
own  members  its  President  and  its  Second  and  Third  Presidents. 

(2)  The  business  of  the  Nationalrat  shall  be  conducted  in  ac- 
cordance with  a  special  law  and  autonomous  rules  of  procedure 
determined  by  the  Nationalrat  within  the  limits  of  this  law. 
The  law  concerning  the  rules  of  procedure  may  be  passed  only 
in  the  presence  of  one-half  of  the  members  and  by  a  majority 
of  two-thirds  of  the  votes  cast. 

Art.  31.  A  resolution  of  the  Nationalrat  requires  the  presence 
of  at  least  one-third  of  the  members  and  an  absolute  major- 
ity of  the  votes  cast,  unless  the  law  regulating  the  rules  of  pro- 
cedure otherwise  provides. 

Art.  32.     (1)  The  sittings  of  the  Nationalrat  shall  be  public. 

(2)  On  demand  of  the  presiding  officer  or  of  one-fifth  of  the 
members  present  the  public  shall  be  excluded  if  the  Nationalrat 
so  resolves  in  executive  session. 

Art.  33.  True  and  accurate  reports  of  the  proceedings  at 
the  public  sittings  of  the  Nationalrat  or  its  committees  are 
privileged  matters. 

B.  The  Bundesrat 

Art.  34.  (1)  The  Bundesrat  shall  represent  the  states  in  pro- 
portion to  the  number  of  citizens  in  the  state  in  accordance  with 
the  following  provisions: 

(2)  The  city  of  Vienna  and  the  State  of  Lower  Austria  (Arti- 
cles 108-114)  shall  be  regarded  as  separate  states  in  respect 
to  representation  and  status  in  the  Bundesrat. 

(3)  The  state  having  the  greatest  number  of  citizens  shall 
have  twelve  members;  every  other  state  shall  be  represented  by 
a  number  of  members  determined  by  the  ratio  of  its  number  of 
citizens  to  the  aforementioned  number  of  citizens,  a  fraction  of 
more  than  one-half  of  the  proportional  number  being  counted 


266       NEW  CONSTITUTIONS  OF  EUROPE 

as  the  full  proportional  number.  Every  state  shall  be  entitled  to 
at  least  three  representatives.  An  alternate  shall  be  chosen  for 
each  representative. 

(4)  The  number  of  representatives  from  each  state  in  accord- 
ance with  the  aforementioned  provision  shall  be  reapportioned 
by  the  Federal  President  after  each  general  census. 

Art.  35.  (1)  The  members  of  the  Bundesrat  and  their  al- 
ternates shall  be  elected  by  the  Landtags  for  the  duration  of 
their  terms  in  accordance  with  the  principles  of  proportional 
representation;  at  least  one  representative,  however,  must  be 
assigned  to  the  party  which  has  obtained  the  second  largest 
number  of  seats  in  the  Landtag,  or,  in  case  several  parties  have 
obtained  the  same  number  of  seats,  to  the  party  which  polled 
the  second  largest  number  of  votes  at  the  last  election  to  the 
Landtag.  Equal  claims  of  several  parties  shall  be  decided  by  lot. 

(2)  Members  of  the  Bundesrat  need  not  necessarily  be  mem- 
bers of  the  Landtag  by  which  they  are  elected;  they  must, 
however,  be  eligible  for  election  to  that  Landtag. 

(3)  After  the  expiration  of  the  term  of  a  Landtag  or  after  its 
dissolution,  the  members  of  the  Bundesrat  elected  by  it  shall 
exercise  their  functions  until  the  election  of  members  of  the 
Bundesrat  by  the  new  Landtag  has  taken  place. 

(4)  The  provisions  of  this  Article  may  be  changed  only  if 
in  the  Bundesrat  such  change  is  made  by  resolution  with  an 
affirmative  vote  of  a  majority  of  the  representatives  of  at  least 
four  states,  provided  that  the  majority  necessary  for  any  resolu- 
tion concurs  in  this  resolution. 

Art.  36.  (1)  The  presidency  of  the  Bundesrat  shall  be  held 
alternately  by  the  states  in  alphabetical  order  for  a  period  of 
six  months. 

(2)  The  ranking  representative  of  the  state  entitled  to  the  pres- 
idency shall  act  as  presiding  officer;  substitutes  shall  be  chosen 
in  accordance  with  the  rules  of  procedure  of  the  Bundesrat. 

(3)  The  Bundesrat  shall  be  called  together  by  its  presiding 
officer  at  the  seat  of  the  Nationalrat.     The  presiding  officer  must 
call  the  Bundesrat  together  immediately  if  at  least  one-fourth  of 
its  members  or  if  the  Federal  Ministry  demands  it. 

Art.  37.  (1)  Except  as  otherwise  provided  in  this  law,  a 
resolution  of  the  Bundesrat  requires  the  presence  of  at  least  one- 
third  of  the  members  and  an  absolute  majority  of  the  votes  cast. 

(2)  The  Bundesrat  shall  by  resolution  determine  its  own  rules 
of  procedure.  This  resolution  requires  the  presence  of  at  least 


AUSTRIA  267 

one-half  of  the  members  and  a  majority  of  two-thirds  of  the  votes 
cast. 

(3)  The  sittings  of  the  Bundesrat  shall  be  public.  The  public 
may,  however,  be  excluded  by  resolution  in  accordance  with  the 
provisions  of  the  rules  of  procedure.  The  provisions  of  Article 
33  shall  apply  also  to  the  public  sittings  of  the  Bundesrat  and 
its  committees. 

C.  The  Bundesversammlung 

Art.  38.  The  Nationalrat  and  the  Bundesrat  shall  assemble 
as  the  Bundesversammlung  in  a  joint  public  sitting  at  the  seat 
of  the  Nationalrat  for  the  election  of  the  Federal  President  and 
for  administering  his  oath  of  office  as  well  as  for  a  resolution  con- 
cerning a  declaration  of  war. 

Art.  39.  (1)  With  the  exception  of  the  cases  provided  for  by 
Article  63,  Paragraph  2,  Article  64,  Paragraph  2,  and  Article 
68,  Paragraph  2,  the  Bundesversammlung  shall  be  called  to- 
gether by  the  Federal  President.  The  presidency  shall  be  ex- 
ercised alternately  by  the  President  of  the  Nationalrat  and  the 
presiding  officer  of  the  Bundesrat,  for  the  first  time  by  the  latter. 

(2)  The  rules  of  procedure  of  the  Nationalrat  shall  be  duly 
applied  in  the  Bundesversammlung. 

(3)  The  Nationalrat  and  the  Bundesrat  may  in  advance  sep- 
arately consider  any  matter  subject  to  a  vote  of  the  Bundesver- 
sammlung. 

(4)  The  provisions  of  Article  33  shall  apply  also  to  the  sittings 
of  the  Bundesversammlung. 

Art.  40.  (1)  The  resolutions  of  the  Bundesversammlung 
shall  be  authenticated  by  its  presiding  officer  and  countersigned 
by  the  Federal  Chancellor. 

(2)  Official  publication  shall  be  the  duty  of  the  Federal 
Chancellor. 

D.  Federal  Legislative  Procedure 

Art.  41.  (1)  Bills  shall  be  submitted  to  the  Nationalrat 
either  as  proposals  of  its  members  or  as  bills  of  the  Federal 
Ministry.  The  Bundesrat  may  submit  bills  to  the  Nationalrat 
through  the  Federal  Ministry. 

(2)  Every  proposal  signed  by  200,000  qualified  voters  or  by 
one-half  of  the  qualified  voters  of  each  of  three  states  (popular 
initiative)  must  be  submitted  by  the  Federal  Ministry  to  the 


268       NEW  CONSTITUTIONS  OF  EUROPE 

Nationalrat  to  be  acted  on  in  accordance  with  its  rules  of  pro- 
cedure.    The  initiative  proposal  must  take  the  form  of  a  bill. 

Art.  42.  (1)  Every  law  enacted  by  the  Nationalrat  must  be 
transmitted  at  once  by  its  President  to  the  Federal  Chancellor, 
who  must  communicate  it  immediately  to  the  Bundesrat. 

(2)  Except  as  otherwise  provided  by  constitutional  law,  an 
enacted  law  may  be  authenticated  and  published  only  if  the 
Bundesrat  does  not  veto  it.     Such  veto  must  be  supported  by 
reasons. 

(3)  This  veto  must  be  communicated  in  writing  to  the  Na- 
tionalrat through  the  medium  of  the  Federal  Chancellor  within 
eight  weeks  after  the  law  has  reached  the  Bundesrat. 

(4)  If  the  Nationalrat  in  the  presence  of  at  least  one-half  of 
its  members  reaffirms  its  original  resolution,  the  law  must  be 
authenticated  and  published.     If  the  Bundesrat  resolves  not 
to  veto  the  law,  or  if  no  valid  veto,  supported  by  reasons,  has 
been  interposed  within  the  period  of  time  precribed  by  Para- 
graph 3,  the  law  must  be  authenticated  and  published. 

(5)  The  Bundesrat  may  not  veto  resolutions  of  the  National- 
rat  in  respect  to  a  law  concerning  the  rules  of  procedure  of  the 
Nationalrat,  the  dissolution  of  the  Nationalrat,  the  grant  of 
the  federal  budget  estimates,  the  approval  of  the  final  budget 
accounts,  the  issue  or  conversion  of  federal  loans,  or  the  disposi- 
tion of  the  federal  property.     Such  laws  enacted  by  the  Na- 
tionalrat must  be  authenticated  and  published  without  further 
delay. 

Art.  43.  If  the  Nationalrat  so  resolves,  or  if  a  majority  of 
the  members  of  the  Nationalrat  so  demands,  every  law  enacted 
by  the  Nationalrat  shall,  before  its  authentication,  be  submitted 
by  the  Federal  President  to  a  referendum. 

Art.  44.  (1)  Constitutional  laws  or  constitutional  provisions 
contained  in  ordinary  laws  may  be  enacted  by  the  Nationalrat 
only  in  the  presence  of  at  least  one-half  of  its  members  and  by  a 
majority  of  two-thirds  of  the  votes  cast.  They  must  be  speci- 
fically designated  as  such  ("constitutional  laws"  or  "constitu- 
tional provisions"). 

(2)  A  complete  revision  of  the  Federal  Constitution  must 
upon  conclusion  of  the  procedure  prescribed  in  Article  42,  but 
before  authentication  by  the  Federal  President,  be  submitted 
to  a  referendum  of  the  entire  people  of  the  Federal  State;  but 
an  amendment  need  be  so  submitted  only  on  demand  of  one- 
third  of  the  members  of  the  Nationalrat  or  the  Bundesrat. 


AUSTRIA  269 

Art.  45.  (1)  An  absolute  majority  of  the  valid  votes  cast  in 
the  referendum  shall  decide. 

(2)  The  result  of  the  referendum  must  be  officially  announced. 

Art.  46.  (1)  Detailed  regulations  in  respect  to  the  initiative 
and  referendum  shall  be  prescribed  by  federal  law. 

(2)  Every  citizen  of  the  Federal  State  qualified  to  vote  in 
the  elections  to  the  Nationalrat  shall  be  qualified  to  participate 
in  the  initiative  and  the  referendum. 

(3)  The  Federal  President  shall  make  arrangements  for  the 
referendum. 

Art.  47.  (1)  The  signature  of  the  Federal  President  shall 
certify  that  the  federal  laws  have  been  constitutionally  enacted. 

(2)  Presentation  for  certification  shall  take  place  through 
the  Federal  Chancellor. 

(3)  The  certification  must  be  countersigned  by  the  Federal 
Chancellor  and  the  competent  federal  ministers. 

Art.  48.  Federal  laws  and  the  treaties  referred  to  in  Article 
50  shall  be  published  in  the  form  in  which  they  are  approved 
by  the  Nationalrat;  federal  laws  based  on  a  referendum  shall 
be  published  in  the  form  in  which  they  are  approved  by  the  ref- 
erendum. 

Art.  49.  (1)  The  federal  laws  and  such  treaties  of  state  as 
are  referred  to  in  Article  50  must  be  published  by  the  Federal 
Chancellor  in  the  Federal  Law  Gazette.  Unless  otherwise 
explicitly  provided,  they  shall  become  effective  at  the  expiration 
of  the  day  on  which  the  number  of  the  Federal  Law  Gazette 
containing  the  publication  is  issued  and  distributed;  and  unless 
otherwise  explicitly  provided,  they  shall  apply  to  the  entire 
federal  territory. 

(2)  A  special  federal  law  shall  regulate  the  publication  of  the 
Federal  Law  Gazette. 

E.  Participation  of  the  Nationalrat  and  the  Bundesrat 
in  the  Executive  Power  of  the  Federal  State 

Art.  50.  (1)  All  political  treaties,  and  all  other  treaties 
only  in  so  far  as  they  provide  for  an  alteration  of  existing  laws, 
shall  require  for  their  validity  the  consent  of  the  Nationalrat. 

(2)  The  provisions  of  Article  42,  Paragraphs  1-4,  and,  in  case 
of  alteration  of  a  constitutional  law  by  a  treaty,  the  provisions  of 
Article  44,  Paragraph  1,  shall  be  duly  applied  to  resolutions  of 
the  Nationalrat  concerning  the  approval  of  treaties. 


270       NEW  CONSTITUTIONS  OF  EUROPE 

Art.  51.  The  Federal  Ministry  must  submit  to  the  National- 
rat  no  later  than  eight  weeks  before  the  expiration  of  the  current 
fiscal  year  estimates  of  the  federal  revenues  and  appropriations 
for  the  ensuing  fiscal  year. 

Art.  52.  The  Nationalrat  and  the  Bundesrat  shall  be  author- 
ized to  examine  the  conduct  of  public  business  by  the  Federal 
Ministry,  to  question  the  members  of  the  Federal  Ministry  on 
all  matters  relating  to  the  execution  of  the  laws,  and  to  de- 
mand all  pertinent  information  as  well  as  to  express  by  resolu- 
tion their  wishes  in  respect  to  the  exercise  of  the  executive  power. 

Art.  53.  (1)  The  Nationalrat  may  by  resolution  set  up 
committees  of  investigation. 

(2)  The  courts  and  all  other  authorities  shall  be  obliged  to 
comply  with  the  requests  of  these  committees  for  evidence; 
upon  their  demand  all  public  authorities  shall  lay  their  records 
before  them. 

(3)  The  procedure  of  the  committees  of  investigation  shall  be 
regulated  by  the  law  concerning  the  rules  of  procedure  of  the 
Nationalrat. 

Art.  54.  The  Nationalrat  shall  participate  in  fixing  railroad, 
postal,  telegraph,  and  telephone  rates  and  prices  of  articles 
subject  to  monopoly,  as  well  as  salaries  of  persons  permanently 
employed  in  the  enterprises  of  the  Federal  State.  The  character 
of  such  participation  shall  be  prescribed  by  federal  constitutional 
law. 

Art.  55.  The  Nationalrat  shall  itself  share  in  the  executive 
power  of  the  Federal  State  in  such  cases  as  are  specified  by  this 
law,  as  well  as  through  the  main  committee  elected  from  among 
its  members  in  accordance  with  the  principles  of  proportional 
representation.  It  shall  be  a  special  function  of  the  main  com- 
mittee to  participate  in  the  choice  of  the  Federal  Ministry 
(Article  70).  Moreover,  certain  ordinances  of  the  Federal 
Ministry  shall  require  the  consent  of  the  main  committee,  as 
may  be  prescribed  by  federal  law. 

F.  Status  of  the  Members  of  the  Nationalrat 
and  the  Bundesrat 

Art.  56.  When  acting  in  their  official  capacity  the  members 
of  the  Nationalrat  or  the  Bundesrat  shall  not  be  bound  by  in- 
structions. 

Art.  57.     (1)  The  members  of  the  Nationalrat  shall  never  be 


AUSTRIA  271 

held  responsible  for  any  votes  cast  in  their  official  capacity, 
and  they  shall  be  held  responsible  only  by  the  Nationalrat  for 
any  utterances  made  in  this  capacity. 

(2)  No  member  of  the  Nationalrat  may,  without  the  consent 
of  this  body,  be  subjected  to  arrest  or  any  other  official  prosecu- 
tion for  a  penal  offense  unless  he  is  apprehended  in  the  act  of 
committing  a  crime. 

(3)  In  case  of  apprehension  in  the  very  act,  the  authorities 
must  notify  the  President  of  the  Nationalrat  that  the  arrest 
has  taken  place. 

(4)  On  demand  of  the  Nationalrat  the  arrest  must  be  cancel- 
led or  the  entire  prosecution  must  be  deferred  during  the  term 
of  the  Nationalrat. 

(5)  The  immunities  attaching  to  the  agencies  of  the  Na- 
tionalrat whose  functions  extend  beyond  the  term  of  the  Na- 
tionalrat shall  continue  for  the  duration  of  their  functions. 

Art.  58.  The  members  of  the  Bundesrat  shall,  during  the 
entire  term  of  their  functions  enjoy  the  immunity  of  members 
of  the  Landtag  by  which  they  are  deputized. 

Art.  59.  (1)  No  person  may  be  a  member  of  the  Nationalrat 
and  the  Bundesrat  at  the  same  time. 

(2)  Public  officials,  including  members  of  the  federal  army, 
shall  not  require  leave  to  exercise  their  functions  as  members 
of  the  Nationalrat  or  the  Bundesrat.  Should  they  seek  election 
to  the  Nationalrat  the  time  necessary  therefor  shall  be  granted  to 
them.  Detailed  regulations  shall  be  prescribed  by  the  rules  for 
the  public  service. 


A.  Administration 
1.  The  Federal  President 

Art.  60.  (1)  The  Federal  President  shall  be  elected  by  the 
Bundesversammlung  in  accordance  with  Article  38  and  by  secret 
ballot. 

(2)  His  term  of  office  shall  be  four  years.     A  reelection  for 
the  term  of  office  immediately  following  shall  be  permissible 
only  once. 

(3)  Only  a  person  who  is  qualified  to  vote  in  the  elections  to 
the  Nationalrat  and  who  is  more  than  thirty-five  years  of  age 


272       NEW  CONSTITUTIONS  OF  EUROPE 

before  the  first  of  January  of  the  year  of  the  election  may  be 
elected  Federal  President. 

(4)  Members  of  reigning  or  formerly  reigning  families  are  not 
eligible. 

(5)  The  person  who  receives  a  majority  of  all  votes  cast  shall 
be  elected.     Balloting  shall  be  repeated  until  an  absolute  major- 
ity is  obtained  for  one  person. 

Art.  61.  During  his  term  of  office  the  Federal  President  must 
not  be  a  member  of  any  general  representative  body  or  exercise 
any  other  profession. 

Art.  62.  On  assuming  office  the  Federal  President  shall  before 
the  Bundesversammlung  take  the  following  oath:  "I  swear  that 
I  will  faithfully  observe  the  constitution  and  all  laws  of  the 
Republic  and  will  fulfill  my  duty  to  the  best  of  my  knowledge 
and  conscience." 

Art.  63.  (1)  An  official  prosecution  of  the  Federal  President 
is  permissible  only  if  the  Bundesversammlung  assents  to  it. 

(2)  A  bill  for  the  prosecution  of  the  Federal  President  shall 
be  presented  by  the  competent  authority  to  the  Nationalrat, 
which  decides  whether  it  shall  be  submitted  to  the  Bundesver- 
sammlung. If  the  Nationalrat  decides  in  the  affirmative,  the 
Federal  Chancellor  must  call  the  Bundesversammlung  together 
immediately. 

Art.  64.  (1)  In  case  of  disability  on  the  part  of  the  Federal 
President  or  in  case  of  a  vacancy  in  his  office,  the  functions  of  the 
Federal  President  shall  devolve  upon  the  Federal  Chancellor. 

(2)  In  case  of  a  vacancy  in  the  Federal  Presidency  the  Federal 
Chancellor  must  immediately  call  the  Bundesversammlung 
together  for  the  election  of  a  new  Federal  President. 

Art.  65.  (1)  The  Federal  President  represents  the  Republic 
in  international  relations;  he  receives  and  accredits  diplomatic 
representatives;  he  accepts  the  exequaturs  of  foreign  consuls; 
he  appoints  the  consular  representatives  of  the  Republic  in 
foreign  countries  and  concludes  treaties. 

(2)  Moreover,  in  addition  to  the  powers  conferred  upon  him 
by  other  provisions  of  this  constitution,  he  shall  be  empowered : 

(a)  To   appoint    all  federal    officials,    including    military 
officers  and  other  federal  functionaries,  and  to  commission 
them. 

(b)  To  create  and  confer  professional  titles. 

(c)  Specifically,   to    pardon    persons    convicted    by   final 
judgments  of  the  courts,  to  mitigate  or  alter  sentences  pro- 


AUSTRIA  273 

nounced  by  the  courts,  to  remit  the  legal  consequences  of  a 
conviction  and  to  cancel  convictions  by  pardon,  to  quash 
criminal  proceedings  in  case  of  penal  offenses  to  be  officially 
prosecuted. 

(d)  To  legitimatize  illegitimate  children  on  the  petition  of 

the  parents. 

(3)  Moreover,  special  laws  shall  prescribe  to  what  extent  the 
Federal  President  shall  be  empowered  to  confer  honorary  rights, 
to  grant  extraordinary  allowances  and  increases  in  salaries  and 
pensions,  to  confer  rights  of  appointment  or  confirmation,  and 
to  exercise  other  powers  in  matters  concerning  individuals. 

Art.  66.  (1)  The  Federal  President  may  transfer  to  the 
competent  members  of  the  Federal  Ministry  the  right  conferred 
on  him  to  appoint  certain  classes  of  federal  employees. 

(2)  The  Federal  President  may  authorize  the  Federal  Minis- 
try or  the  competent  members  thereof  to  conclude  certain  cate- 
gories of  treaties  which  are  not  covered  by  the  provisions  of 
Article  50. 

Art.  67.  (1)  Except  as  otherwise  provided  by  the  constitu- 
tion, all  official  acts  of  the  Federal  President  shall  be  performed 
upon  the  proposal  of  the  Federal  Ministry  or  of  a  federal  min- 
ister empowered  by  it.  The  law  shall  prescribe  to  what  extent 
the  Federal  Ministry  or  the  competent  federal  minister  shall 
be  bound  by  proposals  emanating  from  other  sources. 

(2)  All  official  acts  of  the  Federal  President  require  for  their 
validity  the  countersignature  of  the  Federal  Chancellor  or  the 
competent  federal  ministers. 

Art  68.  (1)  In  accordance  with  Article  142,  the  Federal 
President  shall  be  responsible  to  the  Bundesversammlung  for 
the  exercise  of  his  office. 

(2)  Upon  resolution  of  the  Nationalrat  or  the  Bundesrat  the 
Federal  Chancellor  must  call  the  Bundesversammlung  together 
to  decide  upon  this  issue  [of  impeachment]. 

(3)  A  resolution  of  impeachment  within  the  meaning  of  Arti- 
cle 142  shall  require  the  presence  of  more  than  one-half  of  the 
members  of  each  of  the  two  representative  bodies  and  a  majority 
of  two-thirds  of  the  votes  cast. 

2.  The  Federal  Ministry 

Art.  69.  (1)  The  highest  administrative  functions  of  the 
Federal  State,  unless  conferred  upon  the  Federal  President,  shall 


274       NEW  CONSTITUTIONS  OF  EUROPE 

be  entrusted  to  the  Federal  Chancellor,  the  Vice-Chancellor, 
and  the  other  federal  ministers.  Together  they  form  the  Fed- 
eral Ministry  under  the  presidency  of  the  Federal  Chancellor. 

(2)  The  Vice-Chancellor  shall  be  empowered  to  represent  the 
Federal  Chancellor  in  the  entire  sphere  of  his  authority. 

Art.  70.  (1)  The  Nationalrat  shall  elect  the  Federal  Ministry 
by  a  recorded  vote  upon  nomination  by  a  main  committee  on 
the  election  of  an  entire  Federal  Ministry. 

(2)  Only  persons  eligible  to  the  Nationalrat  may  be  elected 
members  of  the  Federal  Ministry.     The  members  of  the  Federal 
Ministry  need  not  be  members  of  the  Nationalrat. 

(3)  If  the  Nationalrat  is  not  in  session  the  Federal  Ministry 
shall  be  chosen  provisionally  by  the  main  committee;  as  soon  as 
the  Nationalrat  meets,  the  election  must  take  place. 

(4)  The  provisions  of  Paragraphs  1—3  shall  be  duly  applied  to 
the  appointment  of  individual  members  of  the  Federal  Minis- 
try. 

Art.  71.  If  the  Federal  Ministry  resigns  from  office  the  Fed- 
eral President  must,  until  a  new  Federal  Government  has  been 
formed,  entrust  the  carrying  on  of  the  administration  to  mem- 
bers of  the  retiring  Ministry  or  to  high  officials  of  the  federal 
administration,  and  must  authorize  one  of  them  to  preside  over 
the  provisional  Federal  Ministry.  This  provision  shall  be  duly 
applied  if  individual  members  of  the  Federal  Ministry  resign. 

Art.  72.  (1)  Before  assuming  office  the  members  of  the 
Federal  Ministry  shall  take  an  oath  before  the  Federal  President. 

(2)  The  official  commissions  of  the  Federal  Chancellor,  the 
Viee-Chancellor  and  the  other  federal  ministers  shall  be  issued 
by  the  Federal  President  on  the  day  on  which  they  take  the  oath 
of  office,  and  shall  be  countersigned  by  the  newly  commissioned 
Federal  Chancellor. 

(3)  These  provisions  shall  also  be  duly  applied  to  the  cases 
enumerated  in  Article  71. 

Art.  73.  In  case  of  temporary  disability  of  a  federal  minister 
the  Federal  President  shall  authorize  a  federal  minister  or  a  high 
official  of  the  federal  administrative  to  represent  this  minister. 
This  representative  shall  be  under  the  same  responsibility  as  a 
federal  minister  (Article  76). 

Art.  74.  (1)  If  the  Nationalrat  by  express  resolution  with- 
draws its  confidence  from  the  Federal  Ministry,  or  from  in- 
dividual members  of  it,  the  Federal  Ministry  or  the  federal 
minister  in  question  is  thereby  removed  from  office. 


AUSTRIA  275 

(2)  The  presence  of  one-half  of  the  members  of  the  National- 
rat  shall  be  required  for  a  resolution  of  the  Nationalrat  by  which 
confidence  is  withdrawn.     On   demand,  however,  of  one-fifth 
of  the  members  present,   the    vote    must   be   postponed   to 
the  second  week-day  next  following.     A  further  postponement 
of  the  vote  may  take  place  only  by  resolution  of  the  Nationalrat. 

(3)  The  Federal  Ministry  or  its  individual  members  shall  be 
relieved  of  office  by  the  Federal  President  in  cases  prescribed 
by  law  or  upon  their  request. 

Art.  75.  The  members  of  the  Federal  Ministry  as  well  as 
their  deputies  shall  be  authorized  to  participate  in  the  delibera- 
tions of  the  Nationalrat,  the  Bundesrat,  or  the  Bundesversamm- 
lung,  as  well  as  in  the  deliberations  of  the  committees  of  these 
representative  bodies;  and,  on  special  invitation,  to  participate 
in  the  deliberations  of  the  main  committee  of  the  Nationalrat. 
At  their  request  they  must  always  be  heard.  The  Nationalrat, 
the  Bundesrat,  or  the  Bundesversammlung  as  well  as  their  com- 
mittees may  demand  the  presence  of  the  members  of  the  Federal 
Ministry. 

Art.  76.  (1)  The  members  of  the  Federal  Ministry  (Articles 
69  and  71)  shall  be  responsible  to  the  Nationalrat  in  accordance 
with  Article  142. 

(2)  A  resolution  of  impeachment  in  accordance  with  Article 
142  shall  require  the  presence  of  more  than  one-half  of  the 
members. 

Art.  77.  (1)  The  federal  ministers  and  the  officials  subordi- 
nate to  them  shall  be  authorized  to  conduct  the  business  of  the 
federal  administration. 

(2)  The  number  of  the  federal  ministers,  their  scope  of  au- 
thority, and  the  organization  of  their  officers  shall  be  prescribed 
by  federal  law. 

(3)  The  head  of  the  federal  chancellery  shall  be  the  Federal 
Chancellor  and  the  head  of  each  of  the  other  federal  offices  shall 
be  a  federal  minister. 

(4)  The  Federal  Chancellor  or  any  other  federal  minister 
may  in  exceptional  cases  be  placed  in  charge  of  two  federal 
offices. 

Art.  78.  (1)  In  special  cases  federal  ministers  may  be  ap- 
pointed without  at  the  same  time  being  commissioned  to  take 
charge  of  a  federal  office. 

(2)  Secretaries  of  state,  who  are  chosen  and  relieved  of  office 
in  the  same  manner  as  the  federal  ministers,  shall  be  assigned 


276       NEW  CONSTITUTIONS  OF  EUROPE 

to  the  federal  ministers  to  assist  them  in  their  departmental  and 
parliamentary  duties. 

(3)  The  secretary  of  state  shall  be  subordinate  to  the  federal 
minister  and  shall  be  bound  by  his  instructions. 

3.  Federal  Army 

Art.  79.  (1)  The  federal  army  shall  be  entrusted  with  the 
protection  of  the  frontiers  of  the  Republic. 

(2)  In  so  far  as  the  lawful  civil  authorities  require  its  coopera- 
tion, the  army  shall  in  general  protect  the  constitutional  in- 
stitutions, as  well  as  maintain  order  and  safety  within  the  realm, 
and  shall  give  relief  in  cases  of  disasters  due  to  natural  forces 
and  of  accidents  of  unusual  gravity. 

Art.  80.  (1)  The  Nationalrat  shall  have  control  over  the 
army.  In  so  far  as  immediate  control  is  not  reserved  to  the 
Nationalrat  by  the  laws  of  national  defence,  the  control  shall 
be  entrusted  to  the  Federal  Ministry,  or  to  the  competent 
federal  minister,  within  the  limits  of  the  power  conferred  upon 
him  by  the  Federal  Ministry. 

(2)  The  laws  of  national  defence  shall  prescribe  to  what 
extent  the  authorities  of  the  states  or  the  municipalities  may 
de/nand  directly  the  cooperation  of  the  federal  army  for  the  pur- 
poses mentioned  in  Article  79,  Paragraph  2. 

Art.  81.  Federal  law  shall  prescribe  to  what  extent  the  states 
are  to  participate  in  recruiting,  provisioning,  and  quartering  the 
army  and  in  granting  subventions  of  other  necessaries. 

B.  The  Administration  of  Justice 

Art.  82.  (1)  All  jurisdiction  emanates  from  the  Federal 
State. 

(2)  Judgments  and  decrees  shall  be  pronounced  and  executed 
in  the  name  of  the  Republic. 

Art.  83.  (1)  The  constitution  and  jurisdiction  of  the  courts 
shall  be  prescribed  by  federal  law. 

(2)  No  one  may  be  withdrawn  from  the  jurisdiction  of  his 
regularly  established  court. 

(3)  Extraordinary  courts  shall  be  permissible  only  in  cases 
prescribed  by  the  laws  concerning  the  procedure  in  criminal 
matters. 

Art.  84.  Military  jurisdiction  shall  be  abolished  except  in 
time  of  war. 


AUSTRIA  277 

Art.  85.  Capital  punishment  in  ordinary  procedure  shall 
be  abolished. 

Art.  86.  (1)  Except  as  otherwise  provided  by  this  law  the 
judges  shall  be  appointed  upon  nomination  of  the  Federal  Min- 
istry by  the  Federal  President,  or  by  the  competent  federal 
minister,  upon  authorization  of  the  Federal  President.  The 
Federal  Ministry  or  the  federal  minister  shall  request  the  senates 
(Senate)  provided  for  by  the  constitution  of  the  courts  to  sub- 
mit proposals  for  appointment. 

(2)  The  proposal  for  appointment,  submitted  to  the  com- 
petent federal  minister  and  forwarded  by  him  to  the  Federal 
Ministry,  shall  comprise,  if  there  be  a  sufficient  number  of 
applicants,  at  least  three  names,  and,  if  more  than  one  position 
is  to  be  filled,  at  least  twice  as  many  names  as  there  are  judges 
to  be  appointed. 

Art.  87.  (1)  Judges  shall  be  independent  in  the  exercise  of 
their  judicial  functions. 

(2)  A  judge  shall  be  regarded  as  exercising  his  judicial  func- 
tions when  he  conducts  all  judicial  business  entrusted  to  him  by 
law  or  by  assignment  of  business,  with  the  exception  of  such 
matters  of  judicial  administration  as  may  not  be  discharged,  in 
accordance  with  prescriptions  of  the  law,  through  senates  or 
commissions. 

(3)  Business  shall  be  assigned  in  advance  among  the  judges 
of  a  court  for  a  term  designated  by  the  constitution  of  the  courts. 
Any  matter  thus  assigned  to  a  judge  may  be  removed  from  his 
jurisdiction  by  decree  of  the  administration  of  justice  only  in 
case  of  his  disability. 

Art.  88.  (1)  An  age  limit  shall  be  fixed  by  the  constitution 
of  the  courts  upon  the  attainment  of  which  judges  shall  be 
permanently  retired. 

(2)  In  all  other  cases  judges  may  be  removed  from  office,  or 
against  their  will  transferred  to  another  position  or  retired,  only 
by  a  formal  judicial  decision  and  only  in  the  cases  and  according 
to  the  forms  prescribed  by  law.     These  provisions,  however, 
shall  not  apply  to  transfers  or  retirements  which  become  neces- 
sary through  changes  in  the  constitution  of  the  courts.     In 
such  cases  the  law  shall  prescribe  within  what  period  of  time 
judges  may  be  transferred  or  retired  without  the  formalities 
otherwise  prescribed. 

(3)  Temporary  removal  of  judges  from  office  may  take  place 
only  by  decree  of  the  president  of  the  court  or  of  the  superior 


278       NEW  CONSTITUTIONS  OF  EUROPE 

judicial  authority  with  the  simultaneous  reference  of  the  matter 
to  the  competent  court. 

Art.  89.  (1)  The  courts  shall  not  have  power  to  examine 
into  the  validity  of  laws  duly  proclaimed. 

(2)  If  a  court,  on  the  ground  of  its  being  illegal,  questions 
whether  an  ordinance  governs  a  case,  it  shall  suspend  the  pro- 
ceedings and  submit  an  application  to  the  Supreme  Constitu- 
tional Court  for  its  annulment. 

Art.  90.  (1)  Hearings  or  proceedings  in  civil  or  criminal 
cases  before  the  court  authorized  to  pass  judgment  shall  be  oral 
and  public.  Exceptions  may  be  prescribed  by  law. 

(2)  In  criminal  procedure  the  indictment  process  shall  apply. 

Art.  91.  (1)  The  people  shall  participate  in  the  rendering  of 
judgments. 

(2)  In  case  of  crimes  punishable  by  severe  penalties — which 
crimes  shall  be  described  by  law — and  in  case  of  all  political 
crimes  and  misdemeanors,  the  jury  shall  render  the  verdict  as 
to  the  guilt  of  the  accused  person. 

(3)  In  criminal  procedure  for  other  penal  offences  lay  judges 
(Schqffen)  shall  participate  in  the  rendering  of  judgments,  if  the 
penalty  to  be  imposed  exceeds  a  limit  to  be  prescribed  by  law. 

Art.  92.  The  Supreme  Judicial  Court  in  Vienna  shall  be 
the  highest  court  of  appeal  in  civil  and  criminal  cases. 

Art.  93.  Amnesties  on  account  of  legally  criminal  acts  may 
be  granted  by  federal  law. 

Art.  94.  (1)  The  administration  of  justice  shall  be  separated 
from  the  administration  in  every  instance. 

(2)  If  an  administrative  authority  has  to  decide  upon  private 
claims,  the  party  aggrieved  by  such  decision  shall  be  given  a 
remedy  against  the  other  party  by  regular  legal  process,  pro- 
vided there  is  no  legal  provision  to  the  contrary. 

(3)  In  matters  concerning  land  reform  (Article  12,  Paragraph 
1,  Clause  F)  the  commissions  consisting  of  judges,  administra- 
tive officials,  and  experts  shall  have  the  exclusive  right  of  de- 
cision. 

CHAPTER  IV 

THE  LEGISLATIVE  AND  EXECUTIVE  POWER  OF  THE  STATES 
A.  General  Provisions 

Art.  95.  (l)  The  legislative  power  of  the  states  shall  be  exer- 
cised by  the  Landtags.  Their  members  shall  be  elected  in 


AUSTRIA  279 

accordance  with  the  principle  of  proportional  representation  by 
the  equal,  direct,  secret,  and  personal  suffrage  of  all  Austrian 
citizens  of  both  sexes,  who  are  qualified  to  vote  according  to 
the  regulations  for  elections  to  the  Landtags  and  who  have  their 
domicile  in  the  state. 

(2)  In  the  regulations  for  elections  to  the  Landtags  limitations 
upon  the  right  to  vote  or  to  be  elected  may  not  be  more  re- 
stricted than  in  the  regulations  for  election  to  the  Nationalrat. 

(3)  The  voters  shall  exercise  their  suffrages  in  election  dis- 
tricts, which  must  consist  of  contiguous  territory.     The  number 
of  deputies  must  be  apportioned  among  the  election  districts 
on  the  basis  of  the  number  of  their  citizens.     A  division  of  the 
voters  in  other  electoral  bodies  shall  not  be  permissible. 

Art.  96.  (1)  Members  of  the  Landtags  shall  enjoy  the  same 
immunity  as  the  members  of  the  Nationalrat.  The  provisions 
of  Article  57  shall  be  duly  applied. 

(2)  The  provisions  of  Articles  32  and  33  shall  apply  also  to 
the  sittings  of  the  Landtags  and  their  committees. 

Art.  97.  (1)  A  state  law  shall  require  for  its  validity  enact- 
ment by  the  Landtag,  authentication  and  countersignature  in 
accordance  with  the  provisions  of  the  state  constitution,  and 
publication  by  the  chief  executive  officer  of  the  state  (Landes- 
hauptmann)  in  the  State  Law  Gazette. 

(2)  In  so  far  as  a  state  law  provides  for  the  participation  of 
the  federal  authorities  in  its  execution,  the  consent  of  the  Federal 
Ministry  must  be  obtained  for  this  participation.  Before  this 
consent  is  obtained,  the  law  may  not  be  published. 

Art.  98.  (1)  All  laws  enacted  by  the  Landtags  must  be  com- 
municated to  the  competent  federal  minister  by  the  chief  execu- 
tive officer  of  the  state  immediately  after  their  enactment  by 
the  Landtag  and  before  their  publication. 

(2)  Within  eight  weeks  after  the  day  on  which  the  law  en- 
acted by  a  Landtag  has  been  filed  at  the  office  of  the  competent 
federal  minister,  the  Federal  Ministry  may  interpose  a  veto, 
supported  by   reasons,  on  the  ground  that  the  enacted  law 
endangers  federal  interests.     In  that  event  the  enacted  law  may 
be  published  only  if  the  Landtag  in  the  presence  of  at  least  one- 
half  of  its  members  reenacts  the  law. 

(3)  Before  the  expiration  of  the  time  allowed  for  interposing 
a  veto,  publication  shall  be  permissible  only  with  the  express 
consent  of  the  Federal  Ministry. 

Art.  99.     (1)  A  state  constitution,  enacted  by  state  law,  may 


280       NEW  CONSTITUTIONS  OF  EUROPE 

be  amended  by  state  law  in  so  far  as  the  federal  constitution  is 
not  affected  thereby. 

(2)  A  state  constitutional  law  may  be  enacted  only  in  the 
presence  of  one-half  of  the  members  of  the  Landtag  and  by  a 
majority  of  two-thirds  of  the  votes  cast. 

Art.  100.  (1)  Every  Landtag  may  be  dissolved  by  the  Fed- 
eral President  on  the  demand  of  the  Federal  Ministry  and  with 
the  consent  of  the  Bundesrat.  The  consenting  vote  of  the 
Bundesrat  requires  the  presence  of  one-half  of  the  members  and 
a  majority  of  two-thirds  of  the  votes  cast.  The  representatives 
of  the  Landtag  to  be  dissolved  may  not  participate  in  the  vote. 

(2)  In  case  of  dissolution  writs  of  election  must,  according  to 
the  provisions  of  the  state  constitution,  be  issued  within  three 
weeks.  The  newly  elected  Landtag  must  be  called  together 
within  four  weeks  after  the  election. 

Art.  101.  (1)  The  executive  power  of  each  state  shall  be 
exercised  by  a  state  ministry  to  be  elected  by  the  Landtag. 

(2)  The  members  of  the  state  ministry  need  not  be  members 
of  the  Landtag.     However,  only  persons  eligible  to  the  Landtag 
may  be  elected  members  of  the  state  ministry. 

(3)  A  state  ministry  shall  consist  of  the  chief  executive  officer 
of  the  state,  the  necessary  number  of  deputies,  and  other  mem- 
bers. 

(4)  On  assuming  office  the  chief  executive  officer  of  the  state 
shall  take  an  oath  before  the  Federal  President  to  support  the 
federal  constitution,  and  likewise  the  other  members  of  the  state 
ministry  shall  take  the  same  oath  before  the  chief  executive  of- 
ficer of  the  state. 

Art.  102.  (1)  Within  the  states  the  executive  power  of  the 
Federal  State  shall  be  exercised — in  so  far  as  no  federal  authori- 
ties exist  (direct  federal  administration) — by  the  chief  executive 
officer  of  the  state  and  the  state  authorities  subordinate  to  him 
(indirect  federal  administration). 

(2)  The  following  matters  may  be  administered  directly  by 
federal  authorities  within  their  constitutional  sphere  of  ac- 
tion: 

Marking  out  of  boundaries,  traffic  in  goods  and  live  stock  with 
foreign  countries,  customs,  federal  finances,  monopolies,  meas- 
ures, weights,  standards  and  assaying,  technical  experiments, 
administration  of  justice,  commerce  and  industry,  patents, 
protection  of  patterns,  trademarks,  and  other  commercial 
designations,  engineering  and  consulting  engineering,  traffic, 


AUSTRIA  281 

federal  highways,  police  authority  over  watercourses  and  navi- 
gation, posts,  telegraphs  and  telephones,  mining,  regulation  and 
maintenance  of  waters,  construction  and  maintenance  of  water- 
ways, hydrographic  service,  surveying,  labor  law,  protection 
of  workers  and  other  employees,  social  insurance,  protection  of 
monuments,  federal  police,  federal  gendarmerie,  military  affairs, 
care  of  discharged  soldiers  and  their  dependents. 

(3)  The  Federal  State  shall  have  power  to  commission  the 
chief  executive  officer  of  the  state  with  the  executive  power  of 
the  Federal  State  in  the  matters  enumerated  in  Paragraph  2. 

(4)  The  extension  of  federal  administrative  authority  over 
matters  other  than  those  enumerated  in  Paragraph  2  may  take 
place  only  with  the  consent  of  the  states  affected  thereby. 

(5)  The  federal  law,  mentioned  in  Article  120,  Paragraph  1, 
shall  prescribe  to  what  extent  the  chief  executive  officers  of  the 
states  may  have  authority  over  the  federal  police  and  the  federal 
gendarmerie. 

Art.  103.  The  chief  executive  officer  of  the  state  shall  be 
bound  by  the  directions  of  the  Federal  Ministry  and  the  individ- 
ual federal  ministers  in  matters  of  indirect  federal  administra- 
tion. Administrative  appeal  in  such  matters  shall,  unless 
otherwise  expressly  provided  by  federal  law,  extend  to  the 
competent  federal  ministers. 

Art.  104.  The  provisions  of  Article  102  shall  not  be  applied 
to  agencies  created  to  administer  the  business  of  the  Federal 
State  referred  to  in  Article  17. 

Art.  105.  (1)  The  chief  executive  officer  of  the  state  shall 
represent  the  state.  In  matters  of  indirect  federal  administra- 
tion he  shall  be  responsible  to  the  Federal  Ministry  in  accor- 
dance with  Article  142.  This  responsibility  may  be  asserted 
notwithstanding  any  immunity. 

(2)  The  members  of  the  state  ministry  shall  be  responsible  to 
the  Landtag  in  accordance  with  Article  142. 

(3)  A  resolution  of  impeachment  in  accordance  with  Article 
142  shall  require  the  presence  of  one-half  of  the  members. 

Art.  106.  An  administrative  official,  legally  trained,  shall  be 
commissioned  as  Landesamtsdirektor  to  direct  administrative 
services  of  the  state  government.  He  shall  also  be  the  assistant 
to  the  chief  executive  officer  of  the  state  in  matters  of  indirect 
federal  administration. 

Art.  107.  The  states  may  reach  agreements  among  them- 
selves only  concerning  matters  within  their  autonomous  sphere 


282       NEW  CONSTITUTIONS  OF  EUROPE 

of  action  and  must  communicate  the  same  immediately  to  the 
Federal  Ministry. 


B.  The  Federal  Capital  Vienna,  and  the  State  of  Lower  Austria 

Art.  108.  (1)  The  Landtag  of  Lower  Austria  is  divided  into 
two  curise  (Kurieri).  The  one  curia  (state  curia)  shall  consist 
of  the  deputies  elected  by  the  state  exclusive  of  Vienna.  The 
election  of  the  other  curia  (city  curia)  shall  be  regulated  by 
the  constitution  of  the  federal  capital,  Vienna. 

(2)  The  number  of  deputies  must  be  divided  between  the  two 
curiae  in  proportion  to  the  number  of  citizens. 

Art.  109.  The  two  curise  shall  meet  as  the  Landtag  of 
Lower  Austria  to  exercise  the  power  of  legislation  in  all  such 
matters  pertaining  to  the  formerly  autonomous  provincial  ad- 
ministration as  may  be  declared  common  to  both  by  their  com- 
mon state  constitution.  Among  such  matters  shall  be  particu- 
larly the  common  state  constitution  itself. 

Art.  110.  (1)  In  all  matters  not  common  to  both,  each  of  the 
two  divisions  of  the  state  shall  have  the  status  of  an  autonomous 
state. 

(2)  In  such  matters  the  municipal  council  of  the  city  of  Vienna 
shall  have  for  Vienna  the  status  of  a  Landtag,  and  the  state 
curia  shall  have  for  the  state  of  Lower  Austria  the  status  of  a 
Landtag.  The  provisions  of  Article  57  shall  be  applicable  to 
members  of  the  municipal  council  of  Vienna. 

Art.  111.  (1)  The  constitutions  of  the  two  divisions  of  the 
state  as  well  as  the  election  of  members  to  the  Bundesrat  (Article 
35)  shall  not  be  among  the  matters  common  to  both. 

(2)  Likewise,  in  so  far  as  it  is  within  the  sphere  of  action  of 
the  states,  the  power  of  legislation  in  respect  to  taxes  shall  be 
exercised  separately  by  the  municipal  council  of  Vienna  and  the 
Landtag  (state  curia). 

(3)  Their  common  state  constitution  shall  regulate  in  what 
manner  the  expenses  for  matters  common  to  both  shall  be  met. 

Art.  112.  The  general  provisions  of  this  chapter  shall  apply 
to  both  divisions  of  the  state.  In  regard  to  Vienna  the  Biirger- 
meister  elected  by  the  municipal  council  shall  have  the  same 
status  as  the  chief  executive  officer  of  a  state;  the  city  senate 
(Stadtsenai)  elected  by  the  municipal  council  shall  have  the 
status  of  a  state  ministry;  and  the  Magistratsdirektor  shall  have 
the  status  of  a  Landesamtsdirektor. 


AUSTRIA  283 

Art.  113.  (1)  Matters  common  to  both  shall  be  adminis- 
tered by  an  administrative  commission  elected  by  the  Landtag 
of  Lower  Austria  from  among  its  members  in  accordance  with 
the  principles  of  proportional  representation. 

(2)  The  Biirgermeister  of  the  city  of  Vienna  and  the  chief 
executive  officer  of  the  state  of  Lower  Austria  shall  be 
members  of  the  administrative  commission  and  shall  preside 
alternately. 

Art.  114.  A  separate  state  of  Vienna  may  be  formed 
by  concurrent  laws  of  the  municipal  council  of  Vienna  and  the 
Landtag  of  the  state  of  Lower  Austria. 

C.  The  Municipalities  (Gemeinderi) 

Art.  115.  General  public  administration  in  the  states  shall, 
in  accordance  with  the  following  provisions,  be  organized  on  the 
basis  of  local  self-government. 

Art.  116.  (1)  Administrative  districts  and  units  of  local 
self-government  into  which  the  states  are  divided  shall  be  the 
local  municipalities  (Ortsgemeinderi)  and  the  district  municipali- 
ties (Gebietsgemeinderi) . 

(2)  The  local  municipalities  shall  be  subordinate  to  the  dis- 
trict municipalities  and  the  latter  shall  be  subordinate  to  the 
states. 

Art.  117.  (1)  Local  municipalities  of  more  than  20,000  in- 
habitants shall  at  their  request  be  declared  district  municipali- 
ties. In  such  local  municipalities  district  administration  shall 
be  consolidated  with  municipal  administration. 

(2)  Cities  heretofore  governed  under  their  own  charters  shall 
be  district  municipalities. 

Art.  118.  The  local  municipalities  and  district  municipalities 
shall  be  also  autonomous  economic  units.  They  shall  have  the 
right  to  own  and  acquire  property  of  any  description  and  to  dis- 
pose thereof  within  the  limits  of  federal  and  state  law,  to  engage 
in  economic  enterprises,  to  prepare  and  carry  out  their  inde- 
pendent budgets,  and  to  collect  taxes. 

Art.  119.  (1)  The  agencies  of  the  local  municipality  shall  be 
the  local  municipal  council  and  the  local  municipal  administra- 
tion (Ortsgemeindeami) ;  the  agencies  of  the  district  municipality 
shall  be  the  district  municipal  council  and  the  district  municipal 
administration  ( Gebietsgemeindeamf) . 

(2)  Elections  to  all  municipal  councils  shall  take  place  in 


284       NEW  CONSTITUTIONS  OF  EUROPE 

accordance  with  the  principles  of  proportional  representation 
and  by  the  equal,  direct,  secret,  and  personal  suffrage  of  all 
Austrian  citizens  who  have  their  domicile  within  the  territorial 
jurisdiction  of  the  municipal  council  to  be  elected.  The  legisla- 
tive bodies  of  the  states  shall  issue  the  election  regulations.  In 
these  election  regulations  the  limitations  upon  the  right  to  vote 
or  to  be  elected  may  not  be  more  restricted  than  in  the  regula- 
tions for  elections  to  the  Landtag.  The  election  regulations  may 
prescribe  that  the  voters  shall  exercise  their  suffrages  in  elec- 
tion districts  which  must  be  contiguous.  A  division  of  the 
voters  into  other  electoral  bodies  shall  not  be  permissible.  For 
elections  of  the  territorial  municipal  council  the  judicial  dis- 
trict shall  be  the  election  district.  The  number  of  deputies 
must  be  apportioned  among  the  election  districts  on  the  basis  of 
the  number  of  citizens. 

(3)  Only  persons  who  have  their  domicile  in  the  district  muni- 
cipality and  who  are  eligible  for  election  to  the  Landtag  may 
be  elected  members  of  the  district  municipal  council. 

(4)  The  municipal  councils  may,  in  accordance  with  the  prin- 
ciples of  proportional  representation,  elect  from  among  their 
members,  for  the  different  branches  of  administration,  special 
administrative  committees,  which  may,  in  so  far  as  definite  pro- 
fessional interest  or  groups  are  concerned,  be  enlarged  by  the 
admission  of  representatives  of  such  professional  interest  or 
groups. 

(5)  The  director  of  the  district   municipal   administration 
must  be  a  legally  trained  administrative  official. 

Art.  120.  (1)  Additional  fundamental  principles  for  the 
organization  of  general  public  administration  in  the  states  shall 
be  prescribed  by  federal  constitutional  law  in  accordance  with 
Articles  115-119.  Supplementary  laws  shall  be  enacted  by  the 
states. 

(2)  Federal  and  state  laws  respectively  shall,  within  their 
scope  of  authority  as  defined  by  the  constitution,  determine 
what  matters  of  administration,  as  to  subject  matter  and  ad- 
ministrative organization,  shall  be  administered  by  represen- 
tative assemblies,  administrative  committees,  and  administra- 
tive officials  respectively. 

(3)  The  local  municipalities,  however,  shall  be  guaranteed 
scope  of  authority  as  to  original  jurisdiction  in  respect  to  the 
following  matters : 

(a)  Security  of  person  and  property  (local  security  police). 


AUSTRIA  285 

(b)  First  aid  and  life  saving. 

(c)  Maintenance  of  streets,   roads,   public  squares,   and 
bridges  of  the  municipality. 

(d)  Local  street  police. 

(e)  Protection  and  policing  of  the  fields. 

(f)  Market  and  food  police. 

(g)  Sanitary  police. 

(h)  Building  and  fire  police. 


CHAPTER  V 

CONTROL  OVER  THE  EXPENDITURES  OF  THE  FEDERAL  STATE 

Art.  121.  (1)  An  Independent  Court  of  Audit  shall  be  em- 
powered to  examine  the  expenditures  of  each  and  every  agency 
of  the  Federal  State  as  well  as  the  expenditures  of  the  endow- 
ments, foundations,  and  institutions  administered  by  agencies 
of  the  Federal  State.  It  may  also  be  entrusted  with  the  ex- 
amination of  expenditures  of  enterprises  in  which  the  Federal 
State  is  financially  interested. 

(2)  The  Independent  Court  of  Audit  shall  draft  the  balance 
sheet  of  the  federal  budget  and  present  it  to  the  Nationalrat. 

(3)  All  documents  concerning  debts  of  the  State  (financial 
and  administrative  debts)  must,  in  so  far  as  they  authenticate 
a  liability  of  the  Federal  State,  be  countersigned  by  the  President 
of  the  Independent  Court  of  Audit.     Such  countersignature 
certifies  only  the  legality  of  the  expenditure  and  its  correctness 
as  to  accounting. 

Art.  122.  (1)  The  Independent  Court  of  Audit  shall  be  di- 
rectly subordinate  to  the  Nationalrat. 

(2)  The  Independent  Court  of  Audit  shall  consist  of  a  presi- 
dent and  the  necessary  officials  and  employees. 

(3)  The  president  of  the  Independent  Court  of  Audit  shall 
be  elected  by  the  Nationalrat  on  nomination  by  the  main  com- 
mittee. 

(4)  The  president  of  the  Independent  Court  of  Audit  may  not 
be  a  member  of  any  general  representative  body  and  may  not 
have  been  a  member  of  the  Federal  Ministry  or  any  state  minis- 
try within  the  last  five  years. 

Art.  123.  (1)  In  respect  to  responsibility  the  president  of  the 
Independent  Court  of  Audit  shall  have  the  same  status  as  mem- 
bers of  the  Federal  Ministry. 


286       NEW  CONSTITUTIONS  OF  EUROPE 

(2)  He  may  be  relieved  of  office  by  resolution  of  the  National- 
rat. 

Art.  124.  (1)  The  president  shall  be  represented  by  the 
official  of  the  Independent  Court  of  Audit  who  is  next  highest 
in  rank. 

(2)  In  case  of  representation  of  the  president,  the  provisions 
of  Article  123  shall  apply  to  his  representative. 

Art.  125.  (1)  The  Federal  President  shall  appoint  the  offi- 
cials of  the  Independent  Court  of  Audit  on  nomination  by,  and 
with  the  countersignature  of,  the  president  of  the  Independent 
Court  of  Audit;  the  same  shall  apply  to  the  conferring  of  titles 
of  office.  The  Federal  President,  however,  may  empower  the 
president  of  the  Independent  Court  of  Audit  to  appoint  officials 
of  certain  classes. 

(2)  The  president  of  the  Independent  Court  of  Audit  shall 
appoint  its  employees. 

Art.  126.  No  member  of  the  Independent  Court  of  Audit 
may  take  part  in  the  direction  or  administration  of  enterprises 
which  must  render  an  account  to  the  Federal  State  or  to  the 
states  or  which  receive  a  subvention  from,  or  have  a  contract 
with  the  Federal  State  or  a  state,  except  enterprises  the  exclu- 
sive object  of  which  is  the  advancement  of  humanitarian  en- 
deavors or  the  betterment  of  the  economic  conditions  of  public 
employees  or  their  dependents. 

Art.  127.  In  regard  to  the  expenditures  of  a  state  the  con- 
stitutional laws  of  a  state  may  assign  to  the  Independent  Court 
of  Audit  the  same  functions  as  are  conferred  upon  it  by  this 
law  in  regard  to  the  expenditures  of  the  Federal  State. 

Art.  128.  Detailed  regulations  concerning  the  activities  of 
the  Independent  Court  of  Audit  shall  be  prescribed  by  federal 
law. 

CHAPTER  VI 

CONSTITUTIONAL  AND  ADMINISTRATIVE  GUARANTEES 
A.  The  Supreme  Administrative  Court 

Art.  129.  (1)  Any  person  who  claims  to  have  been  aggrieved 
by  an  erroneous  decision  or  decree  of  an  administrative  authority 
may,  after  having  exhausted  his  administrative  appeals,  take 
his  complaint  to  the  Supreme  Administrative  Court. 

(2)     If,  in  matters  referred  to  in  Articles  11  and  12,  the  com- 


AUSTRIA  287 

petent  federal  minister  considers  the  interests  of  the  Federal 
State  injured  by  an  erroneous  decision  or  decree  of  an  authority 
of  a  state  he  also  may,  in  the  name  of  the  Federal  State,  take  his 
complaint  against  such  violation  of  law  before  the  Supreme  Ad- 
ministrative Court. 

(3)  A  violation  of  law  does  not  exist,  in  so  far  as  an  adminis- 
trative authority  has  been  empowered  by  the  provisions  of  the 
law  to  render  a  discretionary  decision  or  decree  and  has  exer- 
cised such  discretion  within  the  meaning  of  the  law. 

Art.  130.  In  matters  concerning  which  complaints  may  be 
taken  to  the  Supreme  Administrative  Court,  administrative 
appeals  may  be  shortened  by  federal  or  state  law  in  accordance 
with  the  provisions  of  Articles  10-15  determining  spheres  of 
authority. 

Art.  131.  From  the  jurisdiction  of  the  Supreme  Administra- 
tive Court  are  excluded  any  matters: 

(a)  which  fall  within  the  jurisdiction  of  the  Supreme  Con- 
stitutional Court; 

(b)  which  fall  within  the  jurisdiction  of  the  ordinary  courts; 

(c)  which  are  to  be  decided  or  decreed  by  a  collegiate  au- 
thority, which,  whether  acting  in  an  inferior  or  superior  ca- 
pacity, shall  have  among  its  members  at  least  one  judge. 
Art.  132.     Every  senate  (Senat)  of  the  Supreme  Administra- 
tive Court  which  renders  judgment  upon  an  appeal  from  a 
decision  or  decree  of  an  administrative  authority  of  a  state  shall 
as  a  rule  have  among  its  members  a  judge  who  formerly  be- 
longed to  the  judicial  or  administrative  service  of  that  state. 

Art.  133.  (1)  A  judgment  of  reversal  by  the  Supreme  Ad- 
ministrative Court  operates  to  set  aside  an  erroneous  decision 
or  decree. 

(2)  The  Administrative  authorities  when  rendering  a  new 
decision  or  decree  are  bound  by  the  judicial  opinion  of  the 
Supreme  Administrative  Court. 

(3)  The  Supreme  Administrative  Court  may  itself  determine 
a  matter  in  so  far  as  the  administrative  authority  is  not,  in 
accordance  with  the  provisions  of  the  law,  empowered  to  decide 
such  matter  at  its  own  discretion. 

Art.  134.  (1)  The  Supreme  Administrative  Court  shall  have 
its  seat  in  the  federal  capital,  Vienna. 

(2)  It  shall  consist  of  a  president,  a  vice-president,  and  the 
necessary  number  of  senate  presidents  (Senatsprdsidenten)  and 
counselors. 


288       NEW  CONSTITUTIONS  OF  EUROPE 

(3)  At  least  one-half  of  the  members  must  have  the  qualifica- 
tions for  the  office  of  judge. 

Art.  135.  The  president,  the  vice-president  and  the  members 
of  the  Supreme  Administrative  Court  shall  be  appointed  by 
the  Federal  President  upon  nomination  by  the  Federal  Minis- 
try. The  nomination  by  the  Federal  Ministry  shall  require, 
for  the  president  and  one-half  of  the  members,  the  assent  of  the 
main  committee  of  the  Nationalrat;  for  the  vice-president  and 
the  other  hah*  of  the  members,  the  assent  of  the  Bundesrat. 

Art.  136.  The  administrative  jurisdiction  and  the  organiza- 
tion of  the  Supreme  Administrative  Court  shall  be  regulated  by 
federal  law. 

B.  The  Supreme  Constitutional  Court 

Art.  137.  The  Supreme  Constitutional  Court  shall  render 
judgment  upon  all  claims  against  the  Federal  State,  the  states, 
or  the  municipalities,  which  cannot  be  brought  before  the  regular 
courts. 

Art.  138.  The  Supreme  Constitutional  Court  shall  also  ren- 
der judgment  upon  conflicts  of  jurisdiction : 

(a)  between  courts  and  administrative  authorities; 

(b)  between  the  Supreme  Administrative  Court  and  the 
courts,  and  in  particular  between  the  Supreme  Administra- 
tive Court  and  the  Supreme  Constitutional  Court  itself; 

(c)  between  the  states  themselves,  as  well  as  between  a 
state  and  the  Federal  State. 

Art.  139.  (1)  The  Supreme  Constitutional  Court  shall  ren- 
der judgment  upon  the  illegality  of  ordinances  of  a  federal  or 
state  authority  on  the  application  of  a  court;  but  if  such  an 
ordinance  shall  constitute  the  basis  of  a  judgment  of  the  Supreme 
Constitutional  Court,  it  may  render  judgment  on  its  own  respon- 
sibility. 

It  shall  also  render  judgment  upon  the  illegality  of  ordinances 
of  a  state  authority  on  application  of  the  Federal  Ministry.  It 
shall  also  render  judgment  upon  the  illegality  of  ordinances  of 
a  federal  authority  on  application  of  a  state  ministry. 

(2)  The  judgment  of  the  Supreme  Constitutional  Court,  by 
which  an  ordinance  is  annulled  as  being  illegal,  shall  obligate 
the  competent  authority  to  publish  the  annulment  immediately. 
The  annulment  shall  become  effective  on  the  day  of  publication. 

Art.  140.     (1)  The  Supreme  Constitutional  Court  shall  render 


AUSTRIA  289 

judgment,  on  application  of  the  Federal  Ministry,  upon  the  un- 
constitutionally of  state  laws;  on  application  of  a  state  minis- 
try, upon  the  unconstitutionality  of  federal  laws;  but  if  such 
a  law  constitutes  the  basis  of  a  judgment  of  the  Supreme  Consti- 
tutional Court,  it  may  render  judgment  upon  its  own  responsi- 
bility. 

(2)  The  application  mentioned  in  Paragraph  1  may  be  made 
at  any  time;  the  ministry  that  makes  the  application   must 
communicate  it  immediately  to  the  competent  state  ministry  or 
the  Federal  Ministry,  as  the  case  may  be. 

(3)  The  judgment  of  the  Supreme  Constitutional  Court  by 
which  a  law  is  annulled  as  being  unconstitutional,  shall  obligate 
the  Federal  Chancellor  or  the  competent  chief  executive  officer 
of  a  state  to  publish  the  annulment  immediately;  the  annulment 
shall  become  effective  on  the  day  of  the  publication,  unless  the 
Supreme  Constitutional  Court  determines  a  period  of  time  at 
the  expiration  of  which  the  annulment  shall  become  effective. 
This  period  of  time  may  not  exceed  six  months. 

(4)  The  provision  of  Article  89,  Paragraph  1,  shall  not  apply 
to  the  examination  into  the  constitutionality  of  laws  by  the 
Supreme  Constitutional  Court. 

Art.  141.  The  Supreme  Constitutional  Court  shall  render 
judgment  concerning  contested  elections  to  the  Nationalrat,  to 
the  Bundesrat,  to  the  Landtags,  or  to  any  other  general  represen- 
tative body;  and  on  application  of  one  of  these  representative 
bodies,  it  shall  render  judgment  in  respect  to  the  declaration 
that  one  of  its  members  has  lost  his  seat. 

Art.  142.  (1)  The  Supreme  Constitutional  Court  shall  render 
judgment  in  impeachment  proceedings  to  determine  the  con- 
stitutional responsibility  of  the  highest  federal  or  state  authori- 
ties for  wrongful  violations  of  law  in  the  exercise  of  their  offices. 

(2)  Impeachment  proceedings  may  be  brought: 

(a)  against  the  Federal  President  on  account  of  viola- 

tion of  the  federal  constitution:  by  resolution  of 
the  Bundesversammlung. 

(b)  against  members  of  the  Federal  Ministry,  or  those 

authorities  having  the  same  status  in  regard  to 
responsibility,  on  account  of  violation  of  a  law: 
by  resolution  of  the  Nationalrat. 

(c)  against  members  of  a  state  ministry,  or  those  au- 

thorities having  according  to  a  state  constitu- 
tion the  same  status  in  regard  to  responsibility, 


290       NEW  CONSTITUTIONS  OF  EUROPE 

on  account  of  violation  of  a  law:  by  resolution 
of  the  competent  Landtag; 

(d)  against  the  chief  executive  officer  of  a  state  on  ac- 
count of  violation  of  a  law,  as  well  as  non- 
compliance  with  the  ordinances  or  other  decrees 
of  the  Federal  Ministry  in  matters  of  indirect 
federal  administration:  by  resolution  of  the 
Federal  Ministry. 

(3)  Judgment  by  the  Supreme  Constitutional  Court  pro- 
nouncing a  conviction  shall  decree  loss  of  office,  and  under 
specially  aggravating  circumstances,  temporary  loss  of  political 
rights;  in  the  event  of  minor  violations  of  law  in  the  cases 
mentioned  in  Paragraph  2,  Clause  D,  the  Supreme  Constitu- 
tional Court  may  limit  itself  to  pronouncing  that  a  violation 
of  law  exists. 

Art.  143.  Impeachment  proceedings  against  the  persons 
enumerated  in  Article  142  may  also  be  brought  on  account  of 
penal  offences  connected  with  the  official  activities  of  the  ac- 
cused. In  such  case  only  the  Supreme  Constitutional  Court 
shall  be  competent;  the  proceedings  pending  in  the  regular 
criminal  courts  shall  be  transferred  to  it.  In  such  cases  the 
Supreme  Constitutional  Court  may  also  apply,  in  addition  to 
Article  142,  Paragraph  3,  the  provisions  of  the  criminal  law. 

Art.  144.  (1)  The  Supreme  Constitutional  Court  shall  decide 
in  respect  to  complaints  of  a  violation  of  constitutionally  guaran- 
teed rights  by  reason  of  a  decision  or  a  decree  of  an  administra- 
tive authority,  after  administrative  appeals  have  been  ex- 
hausted. 

(2)  A  judgment  of  reversal  by  the  Supreme  Constitutional 
Court  operates  to  set  aside  an  unconstitutional  decision  or  decree. 
The  authorities  when  rendering  a  new  decision  or  decree  are  bound 
by  the  judicial  opinion  of  the  Supreme  Constitutional  Court. 

Art.  145.  The  Supreme  Constitutional  Court  shall  render 
judgment  upon  violations  of  international  law  in  accordance 
with  the  provisions  of  a  special  federal  law. 

Art.  146.  The  Federal  President  shall  execute  the  judgments 
of  the  Supreme  Constitutional  Court. 

Art.  147.  (1)  The  Supreme  Constitutional  Court  shall  have 
its  seat  in  Vienna. 

(2)  It  shall  consist  of  a  president,  a  vice-president,  and  the 
necessary  number  of  members  and  substitute  members. 

(3)  The  president,  the  vice-president,  and  one-half  of  the 


AUSTRIA  291 

members  and  substitute  members  shall  be  elected  for  life  by  the 
Nationalrat;  the  other  half  of  the  members  and  substitute  mem- 
bers shall  be  elected  for  life  by  the  Bundesrat. 

Art.  148.  The  detailed  organization  and  the  procedure  of 
the  Supreme  Constitutional  Court  shall  be  regulated  by  federal 
law. 

CHAPTER  VII 

CONCLUDING  PROVISIONS 

Art.  149.  (1)  In  addition  to  this  law  [the  federal  constitu- 
tion] the  following  laws  shall,  within  the  meaning  of  Article 
44,  Paragraph  1,  be  regarded  as  constitutional  laws  with  due 
consideration  for  the  changes  necessitated  by  this  law; 

Fundamental  Law  of  the  State,  of  December  21,  1867,  Na- 
tional Law  Gazette,  No.  142,  concerning  the  general  rights  of 
citizens  for  the  kingdoms  and  territories  represented  in  the 
Reichsrat. 

Law  of  October  27, 1862,  National  Law  Gazette,  No.  87,  for 
the  protection  of  personal  liberty. 

Law  of  October  27,  1862,  National  Law  Gazette,  No.  88, 
for  the  protection  of  the  inviolability  of  the  home. 

Resolution  of  the  provisional  Constituent  Assembly  of 
October  30,  1918,  State  Law  Gazette  No.  3. 

Law  of  April  3,  1919,  State  Law  Gazette,  No.  209,  concern- 
ing the  expulsion  and  the  taking  over  of  the  property  of  the 
house  of  Hapsburg-Lorraine. 

Law  of  April  3,  1919,  State  Law  Gazette,  No.  211,  concern- 
ing the  abolition  of  the  nobility,  of  the  secular  orders  of 
knights  or  of  ladies,  and  certain  titles  and  honors. 

Law  of  May  8, 1919,  State  Law  Gazette,  No.  257,  concerning 
the  coat  of  arms  and  the  Seal  of  State  of  the  Republic  of  Ger- 
man Austria  with  the  changes  effected  by  Articles  2,  5,  and 
6  of  the  Law  of  October  21, 1919,  State  Law  Gazette,  No.  484. 
Section  V  of  Part  III  of  the  Treaty  of  St.  Germain,  of  Sep- 
tember 10,  1919,  State  Law  Gazette,  1920,  No.  303. 
(2)  Article  20  of  the  Fundamental  Law  of  the  State  of  Decem- 
ber 21,  1867,  National  Law  Gazette,  No.  142,  as  well  as  the  Law 
of  May  5,  1869,  National  Law  Gazette,  No.  66,  promulgated  by 
reason  of  the  aforementioned  Article,  shall  cease  to  be  in  force. 
Art.  150.     The  transition  to  this  constitution  of  the  Federal 
State  shall  be  regulated  by  a  special  constitutional  law,  which 
shall  become  effective  at  the  same  time  as  this  law. 


292       NEW  CONSTITUTIONS  OF  EUROPE 

Art.  151.  (1)  This  law  shall  become  effective  on  the  day  of 
the  first  sitting  of  the  Nationalrat,  except  as  otherwise  provided 
by  the  law  referred  to  in  Article  150. 

(2)  The  provisions,  however,  of  Article  50,  Paragraph  1,  and 
of  Article  66,  Paragraph  2  shall  become  effective  on  the  day 
of  publication;  and  thereupon,  until  the  other  provisions  of  this 
law  come  into  force,  the  power  of  ratification  shall  be  exercised 
by  the  Constituent  Assembly  instead  of  the  Nationalrat. 

Art.  152.  The  execution  of  this  law  shall  be  entrusted  to 
the  Ministry  of  the  State. 

SEITZ,  M.  P. 

MAYR,  M.  p.  HAUEIS,  M.  P. 

HANUSCH,  M.  p.  DEUTSCH,  M.  p. 

RENNER,  M.  p.  ELLENBOGEN,  M.  p. 

BREISKY,  M.  p.  ROLLER,  M.  p. 

REISCH,  M.  P.  PESTA,  M.  p. 

HEINL,  M.  p.  GRUNBERGER,  M.  P. 


CONSTITUTIONAL  LAW  OF  OCTOBER  1,  1920, 
CONCERNING  THE  TRANSITION  TO  THE 
CONSTITUTION  OF  THE  FEDERAL  STATE 

The  Constituent  Assembly  has  resolved: 
I.  GENERAL  PROVISIONS 

Section  1.  All  laws  and  executive  directions  (ordinances)  of 
the  State1 — including  such  imperial  laws  of  the  former  State  of 
Austria  as  have  been  put  in  force  for  the  Republic  in  accordance 
with  Section  16  of  the  resolution  of  October  30,  1918,  State  Law 
Gazette,  No.  1,  concerning  the  fundamental  organization  of  po- 
litical power — as  well  as  all  laws  and  executive  directions  (or- 
dinances) of  the  states  shall  continue  to  be  in  force,  in  so  far 
as  they  are  not  in  conflict  with  the  provisions  of  the  law  of  Oc- 
tober 1, 1920,  State  Law  Gazette,  No.  450,  whereby  the  Republic 
of  Austria  is  established  as  a  Federal  State  (federal  constitution) . 

Sec.  2.  In  the  matters  enumerated  in  Articles  10  and  11  of 
the  federal  constitution,  the  laws  of  the  State,  including  the 
former  imperial  laws,  as  well  as  the  laws  of  the  states — these 

l"  Staat "  as  used  in  this  transitional  law  is  translated  "  State  "  and  is  capital- 
ized. It  refers  to  the  State  of  German-Austria  between  the  fall  of  the  Empire 
in  1918  and  the  creation  of  the  Federal  State  by  this  constitution. 


AUSTRIA  293 

latter  for  the  state  in  which  they  were  enacted — shall  become 
federal  laws  within  the  meaning  of  the  federal  constitution. 

Sec.  3.  (1)  The  kws  of  the  states  regulating  the  matters 
enumerated  in  Article  12  of  the  federal  constitution  shall  con- 
tinue to  be  laws  of  the  states  within  the  meaning  of  the  federal 
constitution.  But  as  soon  as  fundamental  principles  have  been 
prescribed  by  federal  law  in  respect  to  these  matters,  such  laws 
of  the  states  must  be  amended  in  accordance  with  Article  15, 
Paragraph  2,  within  the  terms  prescribed  by  federal  law. 

(2)  If,  however,  the  matters  enumerated  in  Article  12  have 
been  regulated  entirely  by  laws  of  the  State,  including  former 
imperial  laws,  any  such  law  shall  continue  to  be  in  force  as  a 
federal  law  for  a  period  of  three  years  computed  from  the  date 
fixed  in  Section  42,  Paragraph  1,  of  this  law,  unless  it  has  been 
previously  abolished  by  a  federal  law  regulating  the  same  matter 
within  the  meaning  of  Article  12.  At  the  expiration  of  these 
three  years  such  laws  shall  cease  to  be  in  force;  thereupon  state 
legislation  may  freely  regulate  such  a  matter  as  long  as  the  Fed- 
eral State  does  not  exercise  the  power  of  legislation  conferred 
upon  it  by  Article  12. 

Sec.  4.  (1)  Laws  of  the  states  concerning  matters  in  which 
the  states,  according  to  Article  15,  Paragraph  1,  of  the  federal 
constitution,  have  the  exclusive  power  of  legislation,  shall  con- 
tinue to  be  laws  of  the  states  within  the  meaning  of  the  federal 
constitution. 

(2)  In  so  far  as  such  matters  have  been  regulated  hitherto  by 
laws  of  the  State,  including  former  imperial  laws,  such  laws  shall 
be  considered  in  every  state  as  laws  of  the  state  within  the 
meaning  of  the  federal  constitution. 

Sec.  5.  The  provisions  of  Sections  2-4  [of  this  transitional 
law]  concerning  laws  shall  apply  as  far  as  may  be,  to  executive 
directions  (ordinances)  enacted  pursuant  to  these  laws. 

Sec.  6.  (1)  In  so  far  as  the  laws  and  the  executive  directions 
(ordinances)  referred  to  in  Section  1  [of  this  transitional  law] 
are  in  conflict  with  the  provisions  of  the  federal  constitution 
regulating  organization — especially  those  concerning  the  com- 
petence and  organization  of  the  authorities  as  well  as  their 
character  as  federal  or  state  authorities— they  shall  be  consid- 
ered as  amended  in  accordance  with  the  meaning  of  the  federal 
constitution.  Particularly  in  matters  in  which  the  states  shall 
henceforth  exercise  the  power  of  execution,  appeal  shall  not  lie 
beyond  the  state. 


294       NEW  CONSTITUTIONS  OF  EUROPE 

(2)  In  so  far  as  doubts  arise  by  reason  of  this  rule  of  construc- 
tion, the  Federal  Ministry  or  the  competent  State  Ministry, 
according  to  the  provisions  of  the  federal  constitutional  regulat- 
ing competence,  shall  regulate  such  matters  by  ordinance  until 
the  enactment  of  a  law  within  the  meaning  of  the  federal  con- 
stitution. 

Sec.  7.  (1)  The  powers  hitherto  conferred  by  law  on  the 
agencies  of  the  State  or  the  states  shall  be  taken  over  by  the 
agencies  of  the  Federal  State  or  the  states  who  are  authorized 
to  exercise  analogous  authority,  in  so  far  as  the  competence 
of  these  agencies  has  not  been  otherwise  regulated  by  the  federal 
constitution.  Accordingly  the  Nationalrat  shall  take  the  place 
of  the  Constituent  Assembly;  the  Federal  President  shall  take 
the  place  of  the  President  of  the  Constituent  Assembly  in  so 
far  as  matters  of  government  were  entrusted  to  the  latter;  the 
Federal  Ministry  shall  take  the  place  of  the  Ministry  of  the 
State;  the  federal  ministers  shall  take  the  place  of  the  secretaries 
of  state;  the  secretaries  of  state  shall  take  the  place  of  the 
under-secretaries  of  state;  the  Independent  Court  of  Audit 
shall  take  the  place  of  the  Independent  Court  of  Audit  of  the 
State. 

(2)  The  Federal  Ministry  as  well  as  the  individual  federal 
ministers  shall  take  over  the  powers  vested  in  the  Ministry  by 
the  law  of  July  24,  1917,  National  Law  Gazette,  No.  307,  by 
which  the  Ministry  was  authorized  to  take  in  regard  to  economic 
problems  measures  necessitated  by  the  extraordinary  conditions 
due  to  the  state  of  war. 

Sec.  8.  (1)  The  authorities  of  the  State — exclusive  of  those 
*of  general  political  administration  in  the  states  (state  ministries, 
chief  authorities  of  the  districts  [Bezirkshauptmannschaften]), 
including  therein  the  special  branches  of  service  attached  to 
these  authorities  (construction  and  forestry,  public  health, 
veterinary  service,  archives  and  libraries,  audit)  and  the  agricul- 
tural authorities  of  original  and  appellate  jurisdiction  (district 
agricultural  authorities  and  state  agricultural  authorities) — 
shall  become  federal  authorities. 

(2)  The  status  of  such  authorities  of  the  State  as  are  excepted 
by  Paragraph  1  shall  be  regulated  by  the  federal  constitutional 
law  concerning  the  organization  of  administration  in  the  states 
(Article  12,  Paragraph  1,  and  Article  120,  Paragraph  1,  of  the 
federal  constitution). 

(3)  The  hitherto  autonomous  administrative  authorities  of 


AUSTRIA  295 

the  states  shall  become  authorities  (officials)  of  the  states  within 
the  meaning  of  the  federal  constitution. 

(4)  The  institutions  of  the  State  shall  be  taken  over  by  the 
Federal  State;  the  institutions  of  the  states  shall  be  institutions 
of  the  states;  the  institutions  of  the  districts,  the  municipalities, 
or  other  public  corporations  shall  be  institutions  of  these  corpora- 
tions. 

Sec.  9.  (1)  The  employees  of  the  authorities  of  the  State 
that  become  federal  authorities  in  accordance  with  Section  8, 
Paragraph  1  [of  this  transitional  law],  shall  become  federal 
employees. 

(2)  The  status  of  employees  of  such  authorities  of  the  State 
as  are  excepted  in  Section  8,  Paragraph  1  [of  this  transitional 
law],  shall  be  regulated  in  connection  with  the  federal  constitu- 
tional law  concerning  the  organization  of  administration  in  the 
states. 

Sec.  10.  (1)  The  existing  police  authorities  of  the  State  shall 
become  federal  authorities  and  shall  administer  their  previous 
functions  as  functions  of  the  Federal  State. 

(2)  The  existing  gendarmerie  shall  be  the  federal  gendarmerie. 

Sec.  11.  (1)  Properties,  including  funds  and  institutions,  be- 
longing to,  or  administered  by,  the  states  in  their  capacity  as 
formerly  autonomous  corporations,  shall  be  properties  of  the 
states  or  shall  be  taken  over  by  the  administration  of  the  states 
within  the  meaning  of  the  Federal  Constitution.  In  respect, 
however,  to  school  funds  administered  by  the  states,  the  prevail- 
ing conditions  shall  continue  until  the  promulgation  of  the 
federal  constitutional  law  concerning  the  spheres  of  competence 
of  the  Federal  State  and  the  states  in  matters  pertaining  to 
schools,  education,  and  popular  instruction  (Article  14  of  the 
federal  constitution). 

(2)  The  entire  remaining  property  of  the  State  shall  be  fed- 
eral property;  the  final  settlement  in  regard  to  the  property  of 
the  State  shall  be  regulated  by  the  federal  constitutional  law  con- 
cerning the  financial  settlement  between  the  Federal  State  and 
the  states. 

II.  PROVISIONS  IN  REGARD  TO  SPECIAL  ARTICLES  OF 
THE  FEDERAL  CONSTITUTIONAL  LAW 

Sec.  12,  in  regard  to  Article  2. 

(1)  As  soon  as  it  has  manifested  its  intention,  Burgenland 


296       NEW  CONSTITUTIONS  OF  EUROPE 

shall  be  incorporated  in  the  Federal  State  as  an  autonomous 
state  having  equal  rights  with  the  other  states. 

(2)  Detailed  regulations  concerning  the  status  of  Burgenland 
in  the  Federal  State  as  an  autonomous  state,  having  equal  rights 
with  the  other  states,  shall  be  prescribed  by  special  federal  con- 
stitutional law. 

Sec.  13,  in  regard  to  Article  4. 

(1)  Restrictions  on  or  interference  with  interstate  or  intra- 
state  passenger  or  freight  traffic  shall  be  permissible  only  as  long 
as  the  extraordinary  conditions  mentioned  in  Article  10,  Para- 
graph 15,  continue  (Section  17  of  this  transitional  law),  and 
may  be  enacted  only  by  the  Federal  State. 

(2)  Existing  restrictions  on  traffic,  not  imposed  by  the  State, 
shall  cease  to  be  in  force  no  later  than  June  30,  1921,  unless 
they  have  been  approved  by  the  State  or  have  been  subsequently 
approved  by  the  Federal  State. 

Sec.  14,  in  regard  to  Article  6. 

(1)  Every  citizen  of  the  Republic  shall  be  a  citizen  of  the, 
state  of  which  his  native  municipal  district  is  a  part  and  shall  be 
at  the  same  time  a  citizen  of  the  Federal  State. 

(2)  Persons  being  Austrian  citizens  without  having  domicili- 
ary rights  (Heimatrecht)  in  any  municipality  of  the  Republic 
shall  be  citizens  of  the  Federal  State.     Federal  law  shall  pre- 
scribe in  what  municipality  they  may  acquire  domiciliary  rights 
and  thereby  the  prerequisites  for  citizenship  in  a  state.     The 
Federal  State  shall  have  regulatory  powers  in  respect  to  persons 
who,  without  having  obtained  domiciliary  rights,  have  acquired 
national  citizenship  through  option  by  virtue  of  the  Treaty  of 
St.  Germain,  or  by  virtue  of  a  simple  declaration  in  accordance 
with  Section  2  of  the  Law  of  December  5,  1918,  State  Law 
Gazette,  No.  91,  concerning  the  right  of  national  citizenship. 

Sec.  15,  in  regard  to  Article  10,  Paragraph  9. 

Until  the  promulgation  of  the  federal  law  provided  for 
in  Article  10,  Paragraph  9,  relative  to  the  designation  of  high- 
ways as  federal  highways,  the  administration  of  highways 
of  the  State  (former  national  highways)  shall  be  exercised  in 
accordance  with  the  existing  provisions  at  the  expense  of  the 
Federal  State  by  the  agencies  hitherto  entrusted  with  this  ad- 
ministration. 

Sec.  16,  in  regard  to  Article  10,  Paragraph  10. 

The  designation  of  those  waters  the  regulation  and  mainte- 
nance of  which  is  the  function  of  the  Federal  State  according  to 


AUSTRIA  297 

Article  10,  Paragraph  10,  shall  take  place  with  the  consent  of 
the  individual  states.  Until  such  settlement  the  regulation 
and  maintenance  of  these  waters  shall  be  continued  in  accord- 
ance with  the  existing  provisions  by  the  agencies  hitherto 
entrusted  therewith,  with  reservations  as  to  a  subsequent  appor- 
tionment of  the  expenses  incurred. 

Sec.  17,  in  regard  to  Article  10,  Paragraph  15. 

(1)  In  conformity  with  Article  10,  Paragraph  15,  the  Federal 
State  shall  have  powers  of  legislation  and  execution  concerning 
such  measures  as  are  necessary  to  assure  a  uniform  conduct  of 
economic  affairs  for  the  duration  of  the  extraordinary  conditions 
caused  by  the  events  of  the  War  of  1914-1918. 

(2)  The  date  from  which  the  aforementioned  extraordinary 
conditions  shall  be  considered  settled  shall  be  determined  by 
federal  law. 

Sec.  18,  in  regard  to  Article  15,  Paragraph  3. 

(1)  In  the  matters  enumerated  in  Articles  11  and  12,  such 
special  provisions  relative  to  the  competence  of  the  central 
authorities  as  are  contained  in  the  hitherto  existing  laws  and  ex- 
ecutive directions  (ordinances)  shall,  notwithstanding  the  provi- 
sions of  Section  6  [of  this  transitional  law],  remain  in  force  for 
the  cases  provided  for  in  Article  15,  Paragraph  3,  until  new  fed- 
eral laws  shall  have  been  enacted. 

(2)  In  matters  enumerated  in  Articles  11  and  12,  in  which  the 
existing  laws  and  executive  directions  (ordinances)  do  not  regu- 
late cases  of  the  aforementioned  kind,  the  provision  of  Article 
15,  Paragraph  3,  shah1  become  effective  at  once. 

Sec.  19,  in  regard  to  Article  23. 

Until  the  promulgation  of  the  law  necessary  for  the  carrying 
out  of  the  provisions  of  Article  23,  the  provisions  of  the  Law  of 
July  12,  1872,  National  Law  Gazette,  No.  112  (law  concerning 
syndicates),  shall  remain  hi  force  with  the  changes  effected  by 
Section  12,  Paragraph  2,  of  the  Fundamental  Law  of  November 
22,  1918,  State  Law  Gazette,  No.  38,  concerning  judicial  power. 

Sec.  20,  in  regard  to  Article  24. 

(1)  The  Constituent  Assembly,  elected  by  virtue  of  the  Law  of 
July  20,  1920,  State  Law  Gazette,  No.  316,  concerning  regula- 
tions for  the  elections  to  the  Constituent  Assembly,  shall  be  the 
first  Nationalist  within  the  meaning  of  the  federal  constitution. 

(2)  The  laws  of  July  20,  1920,  State  Law  Gazette,  No.  317, 
concerning  the  election  and  convocation  of  the  Constituent  As- 
sembly, and  of  July  20,  1920,  State  Law  Gazette,  No.  316,  con- 


298       NEW  CONSTITUTIONS  OF  EUROPE 

cerning  regulations  for  elections  to  the  Constituent  Assembly, 
shall  remain  in  force  for  the  first  Nationalrat.  The  term  of 
the  first  Nationalrat  shall  remain  fixed  thereby  at  three  years 
and  shall  begin  with  the  day  of  its  first  meeting. 

(3)  Until  a  new  regulation  by  law,  the  members  of  the  Na- 
tionalrat shall  have  the  rights  and  duties  of  members  of  the  Con- 
stituent Assembly,  except  as  otherwise  provided  by  the  federal 
constitution.     They  shall,  upon  summons  by  the  President  of 
the  Constituent  Assembly,  and  by  roll  call,  take  an  oath,  using 
the  formula  "I  swear," to  be  unalterably  faithful  to  the  Republic, 
to  observe  constantly  and  wholly  the  constitutional  laws  as  well 
as  all  other  laws,  and  to  discharge  their  duties  conscientiously. 

(4)  The  officials  and  employees  of  the  Constituent  Assembly 
shall  be  employees  of  the  office  of  the  President  of  the  National- 
rat;  they  shall  have  the  same  status,  duties,  and  rights  as  the 
federal  employees. 

Sec.  21,  in  regard  to  Articles  34  and  36. 

(1)  The  states  shall  be  represented  in  the  first  Bundesrat  as 
follows: 

Vienna  12  members 

State  of  Lower  Austria  10 

Styria  6 

Upper  Austria  6 

Tyrol  3 

Carinthia  3 

Salzburg  3 

Vorarlberg  3 

(2)  As  soon  as  Burgenland  has  elected  a  Landtag,  the  number 
of  members  to  be  deputized  to  the  Bundesrat  from  Burgenland 
shall  be  determined  by  the  Federal  President  in  accordance  with 
Article  34. 

(3)  The  Bundesrat  shall  assemble  for  its  first  sitting  on  the 
21st  day  after  the  first  meeting  of  the  Nationalrat,  in  the  hall 
of  the  parliament  building  designated  by  the  Federal  Chancellor. 
The  member  elected  to  the  first  place  from  Vienna  shall  act  as 
the  first  presiding  officer. 

Sec.  22,  in  regard  to  Article  49. 

(1)  Until  the  promulgation  of  the  law  provided  for  in  Article 
49,  Paragraph  2,  the  provisions  of  the  Law  of  November  12, 
1918,  State  Law  Gazette,  No.  7,  concerning  the  publication  of 
laws  and  ordinances  in  the  State  Law  Gazette  shall,  in  so  far  as 


AUSTRIA  299 

they  have  not  been  changed  by  the  federal  constitution,  apply, 
as  far  as  may  be,  to  the  Federal  Law  Gazette;  and  thereupon 
Section  6  of  this  law  is  to  be  applied. 

(2)  The  Federal  Constitution  and  this  law  as  well  as  the  proc- 
lamation mentioned  in  Section  41  [of  this  transitional  law] 
shall  be  republished  in  the  first  number  of  the  Federal  Law 
Gazette.  The  text  of  the  laws  thus  republished  shall  be  the 
standard. 

Sec.  23,  in  regard  to  Article  54. 

The  Law  of  April  13,  1920,  State  Law  Gazette,  No.  180,  con- 
cerning participation  of  the  Constituent  Assembly  in  the  fixing 
of  railroad,  postal,  telegraph,  and  telephone  rates  and  of  prices 
of  articles  subject  to  monopoly,  as  well  as  of  salaries  of  persons 
employed  in  enterprises  of  the  State,  shall  be  considered  as  the 
federal  constitutional  law  provided  for  in  Article  54;  and  there- 
upon Section  6  of  this  law  shall  be  applied. 

Sec.  24,  in  regard  to  Articles  60  and  62. 

(1)  For  the  first  election  of  a  Federal  President,  the  Bundes- 
versammlung  (Article  38)  shall  meet,  without  special  convoca- 
tion, on  the  28th  day  after  the  first  sitting  of  the  Nationalrat  at 
eleven  o'clock  in  the  morning  in  the  parliament  building. 

(2)  In  case  the  oath  of  office  cannot  be  administered  to  the 
newly  elected  Federal  President  at  the  same  sitting  of  the  Bun- 
desversammlung,  the  Federal  Chancellor  must  call  the  Bundes- 
versammlung  together  at  the  next  possible  date  for  the  adminis- 
tering of  the  oath  of  office  to  the  Federal  President. 

(3)  Until  the  oath  of  office  has  been  administered  to  the  Fed- 
eral President  the  last  President  of  the  Constituent  Assembly 
shall  perform  all  the  functions  assigned  to  the  Federal  President. 

Sec.  25,  in  regard  to  Article  65,  Paragraph  3. 

(1)  The  Law  of  February  26,  1920,  State  Law  Gazette,  No. 
94,  whereby  Article  7  of  the  Law  of  March  14,  1919,  State  Law 
Gazette,   No.   180,  concerning  the  Ministry  of  the  State  is 
amended,  shall  be  considered  as  an  ordinary  federal  law  within 
the  meaning  of  Article  65,  Paragraph  3. 

(2)  The  rights  of  confirmation  conferred  upon  the  President 
of  the  Constituent  Assembly  by  the  hitherto  existing  laws  shall 
be  transferred  to  the  Federal  President,  in  so  far  as  such  provi- 
sions may  not  be  considered  changed  by  the  transition  to  the 
Federal  State. 

(3)  Without  prejudice  to  the  new  regulation  of  the  law  of  the 
public  service  of  federal  employees,  the  Federal  President  shall 


300       NEW  CONSTITUTIONS  OF  EUROPE 

also  be  empowered  to  cancel  and  to  mitigate  disciplinary  penal- 
ties pronounced  by  the  disciplinary  authorities  against  federal 
employees,  to  remit  the  legal  consequences  of  such  penalties, 
as  well  as  to  direct  that  disciplinary  proceedings  shall  not  be 
commenced  or  that  disciplinary  proceedings  commenced  should 
be  discontinued. 

Sec.  26,  in  regard  to  Article  69. 

(1)  Until  the  promulgation  of  the  federal  law  provided  for 
in  Article  77,  Paragraph  2,  the  Chancellor  of  the  State  and  the 
Ministry  of  the  State  shall,  as  Federal  Chancellor  and  Federal 
Ministry  respectively,  carry  on  their  business  provisionally,  with 
their  previous  instructions  and  powers. 

(2)  The  Ministry  of  the  State  shall  be  the  first  Federal  Min- 
istry within  the  meaning  of  the  federal  constitution. 

Sec.  27,  in  regard  to  Article  79. 

The  army  created  by  virtue  of  the  Law  of  National  Defence 
of  March  18,  1920,  State  Law  Gazette,  No.  122,  shall  be  the 
federal  army  within  the  meaning  of  the  federal  constitution. 

Sec.  28,  in  regard  to  Articles  82-94. 

The  provisions  actually  regulating  the  jurisdiction  and  organi- 
zation of  the  civil  and  criminal  courts  shall  remain  in  force  until 
further  provisions  have  been  enacted. 

Sec.  29,  in  regard  to  Article  95. 

The  existing  representative  assemblies  in  the  states  shall  be 
the  first  Landtags  within  the  meaning  of  the  federal  constitution. 

Sec.  30,  in  regard  to  Article  98. 

(1)  Article  98  shall  also  be  applied  to  laws  of  the  states  en- 
acted before  the  federal  constitution  goes  into  effect,  in  so  far  as 
the  Ministry  of  the  State  has  not  yet  taken  any  steps  within  the 
meaning  of  Articles  14  and  15  of  the  Law  of  March  14,  1919, 
State  Law  Gazette,  No.  179,  concerning  representative  assem- 
blies, and  in  so  far  as  the  term  prescribed  in  the  last  mentioned 
Articles  has  not  yet  expired.     For  computing  the  term  pre- 
scribed in  Article  98,  Paragraph  2,  the  day  on  which  the  law  has 
been  filed  in  the  competent  office  of  the  Ministry  of  the  State 
shall  be  regarded  as  the  day  of  its  being  filed  in  the  office  of  the 
competent  federal  minister. 

(2)  Protests  of  the  Ministry  of  the  State  against  laws  of  the 
states,  concerning  which  protests  the  Landtag  has  not  yet  passed 
a  resolution  prior  to  the  date  on  which  the  federal  constitution 
becomes  effective,  shall  be  considered  as  protests  of  the  Federal 
Ministry. 


AUSTRIA  301 

Sec.  31,  in  regard  to  Article  98. 

In  so  far  as  they  are  not  considered  as  changed  by  the  federal 
constitution,  the  state  constitutions  (state  ordinances)  at  pres- 
ent in  force  shall  be  regarded  provisionally  as  the  state  consti- 
tutions provided  for  in  the  federal  constitution. 

Sec.  32,  in  regard  to  Article  101. 

(1)  The  former  state  ministries  shall  be  considered  as  the 
state  ministries  within  the  meaning  of  the  federal  constitution. 

(2)  Within  fourteen  days  after  assuming  office  the  Federal 
President  shall  call  the  chief  executive  officers  of  the  states  to- 
gether to  administer  to  them  the  oath  of  office  (Article  101, 
Paragraph  4).     The  chief  executive  officer  of  a  state  already  in 
office  shall,  however,  even  before  he  takes  the  oath  of  office, 
exercise  the  functions  of  a  chief  executive  officer  of  a  state  within 
the  meaning  of  the  federal  constitution. 

(3)  Salaries  of  members  of  the  state  ministries  which  fall 
due  after  the  date  fixed  in  Section  42,  Paragraph  1  [of  this  tran- 
sitional law],  shall  be  paid  by  the  states. 

Sec.  33,  in  regard  to  Articles  108-114. 

(1)  The  existing  Landtag  of  Lower  Austria  shall  be  the  Land- 
tag of  Lower  Austria  within  the  meaning  of  the  federal  consti- 
tution.    The  deputies  of  the  Landtag  elected  in  the  municipal 
district  of  Vienna  shall  form  the  city  curia;  the  remaining  depu- 
ties of  the  Landtag  shall  form  the  state  curia. 

(2)  The  legislative  and  executive  power  in  matters  pertaining 
to  the  formerly  autonomous  provincial  administration,  as  well 
as  the  remaining  power  of  legislation  hitherto  conferred  on  the 
Landtag  shall  continue  to  be  exercised  by  the  agencies  hitherto 
competent,  until  the  agencies  provided  for  in  the  common  state 
constitution  have  been  chosen.     In  particular,  the  present  state 
ministry  shall  exercise  the  functions  of  the  administrative  com- 
mission  (Article   113)   until  the  election  of  the  latter.    The 
matters,  however,  described  in  Article  111,  Paragraphs  1  and 
2,  shall,  in  respect  to  legislation  and  execution,  be  subject  im- 
mediately to  the  competence  of  the  two  divisions  of  the  state. 

(3)  In  regard  to  Vienna  the  municipal  council  shall  assume, 
within  the  meaning  of  the  federal  constitution,  the  functions  of 
the  Landtag;  likewise  the  city  Senate  shall  assume  the  func- 
tions of  the  state  ministry  and  the  Burgermeister  shall  assume 
the  functions  of  the  chief  executive  officer  of  the  state. 

(4)  Until  the  election  of  a  new  state  ministry  in  the  state  of 
Lower  Austria,  the  members  of  the  present  state  ministry  who 


302       NEW  CONSTITUTIONS  OF  EUROPE 

have  not  been  elected  in  an  election  district  in  Vienna,  and  the 
members  of  the  present  state  council  shall  exercise  provisionally 
the  functions  of  the  state  ministry  within  the  meaning  of  the 
federal  constitution;  and  likewise  any  deputy  of  the  chief  ex- 
ecutive officer  of  the  state,  provided  such  deputy  has  not  been 
elected  in  an  election  district  in  Vienna,  shall  exercise  provi- 
sionally the  functions  of  the  chief  executive  officer  of  the  state. 

(5)  Until  the  promulgation  of  the  federal  constitutional  law 
concerning  the  organization  of  administration  in  the  states 
(Article  12,  Paragraph  1),  the  functions  of  the  indirect  federal 
administration  as  to  original  and  appellate  jurisdiction  shall  for 
Vienna  be  combined  in  one  jurisdiction.     In  all  those  matters, 
however,  in  which,  by  virtue  of  special  legal  provisions,  no  ap- 
peal lies  beyond  the  state,  the  competent  officer  of  the  Magistrat 
shall  decide  in  first  instance,  and  the  Biirgermeister,  in  his 
capacity  as  chief  executive  officer  of  the  state,  shall  decide  on 
appeal.    These  provisions  shall  apply  to  decisions  in  appellate 
proceedings  pending  on  the  date  on  which  this  law  becomes 
effective. 

(6)  The  existing  legal  provisions  concerning  salaries  of  the 
commissioners  of  the  people  in  the  states  shall  not  apply  to 
Vienna. 

Sec.  34,  in  regard  to  Articles  115-119. 

(1)  Until  the  organization  of  general  public  administration 
in  the  states  in  accordance  with  the  provisions  of  Articles  115— 
119,  the  existing  district  administration  shall  continue;  but  in 
the  jurisdiction  of  each  district  administration  (Bezirkshaupt- 
mannschaft)  a  district  council  shall  be  elected.     The  sphere  of 
action  of  this  district  council  shall  be  determined  by  federal  leg- 
islation and  by  state  legislation  within  their  legislative  com- 
petences as  prescribed  by  constitutional  law. 

(2)  In  cities  governed  under  their  own  charters  the  municipal 
council  shall  assume  at  the  same  time  the  functions  of  the  dis- 
trict council.     These  functions  may  be  transferred  to  a  special 
committee  of  the  municipal  council,  and  in  Vienna  to  the  district 
councils  existing  there  or  to  committees  thereof. 

(3)  The  election  of  the  district  councils  shall  take  place  in 
accordance  with  the  principles  of  proportional  representation 
and  by  the  equal,  direct,  secret,  and  personal  suffrage  of  all 
Austrian  citizens,  who  have  their  domicile  in  the  territory  of 
the  district  administration.     The  number  of  the  members  of 
the  district  councils  shall  be  apportioned  among  the  judicial 


AUSTRIA  303 

districts  on  the  basis  of  the  number  of  their  citizens.    The  pro- 
visions of  Article  119,  Paragraph  2,  shall  be  duly  applied. 

(4)  Only  persons  who  have  their  domicile  in  the  district  and 
who  are  eligible  for  election  to  the  Landtag  shall  be  eligible  for 
the  district  council. 

(5)  Detailed  regulations  for  carrying  out  these  elections  shall 
be  prescribed  by  state  law. 

(6)  Further  fundamental  principles  for  the  reorganization  of 
the  existing  district  administration  in  accordance  with  the  pre- 
ceding provisions  shall  be  prescribed  by  federal  law.     Supple- 
mentary laws  shall  be  enacted  by  the  states.     The  federal  law 
must  be  promulgated  within  four  months  after  the  federal  con- 
stitution becomes  effective;  the  state  laws  must  be  promulgated 
within  four  additional  months  after  the  federal  law  becomes 
effective. 

Sec.  35,  in  regard  to  Article  122. 

(1)  The  hitherto  existing  Independent  Court  of  Audit  of  the 
State  shall  become  the  Independent  Court  of  Audit  within  the 
meaning  of  the  federal  constitution. 

(2)  Until  the  election  of  the  president  of  the  independent 
Court  of  Audit  his  functions  shall  be  performed  by  the  last  presi- 
dent of  the  Independent  Court  of  Audit  of  the  State. 

Sec.  36,  in  regard  to  Article  131. 

(1)  The  Supreme  Administrative  Court  shall  not  become 
competent  in  administrative  criminal  matters  until  the  general 
provisions  of  administrative  criminal  law  and  of  administrative 
criminal  procedure  have  been  reenacted.    This  reenactment 
must  take  place  before  July  1,  1921. 

(2)  The  provisions  contained  in  any  laws  concerning  adminis- 
tration expressly  exempting  certain  cases  from  the  jurisdiction 
of  the  Supreme  Administrative  Court  shall  remain  in  force 
provisionally. 

Sec.  37,  in  regard  to  Articles  134  and  135. 

(1)  The  hitherto  existing  Supreme  Administrative  Court  shall 
become  the  Supreme  Administrative  Court  within  the  meaning 
of  the  federal  constitution. 

(2)  Its  president  and  the  members  shall  remain  in  office  until 
new  appointments  have  been  made  in  accordance  with  Article 
135.    These  new  appointments  must  be  made  before  January 
1,  1921. 

(3)  Within  this  period  of  time  the  president  and  the  members 
of  the  Supreme  Aolministrative  Court  may,  within  the  meaning 


304         NEW  CONSTITUTIONS  OF  EUROPE 

of  Article  88,  Paragraph  2,  be  retired  without  the  formalities 
otherwise  prescribed,  unless  they  have  been  reappointed  in 
conformity  with  Article  135. 

Sec.  38,  in  regard  to  Article  136. 

In  so  far  as  it  has  not  been  amended  by  the  provisions  of  the 
federal  constitution  and  of  this  law,  the  Law  of  February  6, 1919, 
State  Law  Gazette,  No.  88,  concerning  the  creation  of  a  German- 
Austrian  Supreme  Administrative  Court,  shall  remain  in  force 
as  the  federal  law  provided  for  in  Article  136  until  further  provi- 
sions have  been  enacted;  in  which  case  Section  6  of  this  law  must 
be  applied. 

Sec.  39,  in  regard  to  Article  147. 

(1)  The  hitherto  existing  Supreme  Constitutional  Court  shall 
become  the  Supreme  Constitutional  Court  within  the  meaning 
of  the  federal  constitution. 

(2)  Its  president,  vice-president,  members,  and  substitute 
members  shall  remain  in  office  until  new  appointments  have 
been  made  in  accordance  with  Article  147. 

Sec.  40,  in  regard  to  Article  148. 

The  laws  regulating  the  organization  and  the  procedure  of  the 
hitherto  existing  Supreme  Constitutional  Court  shall  be  re- 
garded as  the  federal  law  provided  for  in  Article  148  until 
further  provisions  have  been  enacted. 

Sec.  41,  in  regard  to  Article  151. 

As  soon  as  the  Constituent  Assembly  to  be  elected  on  Octo- 
ber 17,  1920,  in  conformity  with  Section  3  of  the  Law  of  July  20, 
1920,  State  Law  Gazette,  No.  317,  has  been  called  together,  the 
office  of  the  Chancellor  of  the  State  shall  fix  by  proclamation 
in  the  State  Law  Gazette  the  day  on  which  the  federal  con- 
stitution and  this  law  become  effective. 


III.  CONCLUDING  PROVISIONS 

Sec.  42.  (1)  In  so  far  as  they  do  not  relate  to  matters  per- 
taining to  the  formerly  autonomous  administration  of  the  states, 
Articles  10-13  inclusive  and  Article  15  of  the  Federal  Constitu- 
tion shall  not  become  effective  until  the  day  on  which  the  follow- 
ing laws  come  into  force: 

(a)  The  federal  constitutional  law  concerning  the  financial 
settlement  between  the  Federal  State  and  the  states  or  the 
municipalities. 


AUSTRIA  305 

(b)  The  federal  constitution  law  concerning  the  scope  of  au- 
thority of  the  Federal  State  and  the  states  in  regard  to 
schools,  education,  and  popular  instruction  (Article  14  of 
the  federal  constitution). 

(c)  The  federal  constitutional  law  concerning  the  organiza- 
tion of  general  public  administration  in  the  states  (Article 
120  of  the  federal  constitution). 

(2)  Until  such  laws  come  into  force,  the  following  provisions 
shall  be  effective: 

(a)  In  legislative  and  executive  matters,  the  division  or  juris- 
diction between  the  Federal  State  and  the  states  shall  not 
be  changed  from  the  existing  division  of  jurisdiction  be- 
tween the  State  and  the  states. 

(b)  All  matters  pertaining  to  the  formerly  autonomous  ad- 
ministration shall  be  administered  by  the  states  within  their 
autonomous  sphere  of  action. 

(c)  All  other  executive  matters  shall  be  administered  by  the 
states  as  matters  of  indirect  federal  administration  within 
the  meaning  of  the  federal  constitution,  in  so  far  as  they  do 
not  come  within  the  competence  of  special  federal  author- 
ities (Article  102  of  the  federal  constitution);  Sec.   33, 
Paragraph  5  [of  this  transitional  law],  shall  apply  to  the 
conduct  of  this  indirect  federal  administration  in  Vienna. 

(d)  The  authorities  excepted  in  Section  8,  Paragraph  1  [of 
this  transitional  law],  shall  be  provisionally  federal  author- 
ities; the  employees  described  in  Section  9,  subdivision  2, 
[of  this  transitional  law],  shall  be  provisionally  federal 
employees.     Such  powers  concerning  matters  of  personnel 
relative  to  employees  described  in  Section  9,  Paragraph  2 
[of  this  transitional  law],  as  have  been  conferred  upon  the 
chief  executive  officers  of  the  states  and  the  state  minis- 
tries in  accordance  with  regulations  hitherto  in  force,  shall 
continue. 

(e)  The  provisions  of  Section  6,  Paragraph  1  [of  this  tran- 
sitional law],  shall  be  applied  only  in  so  far  as  they  are  not 
in  conflict  with  the  provisions  of  this  Section. 

(f)  In  regard  to  schools  and  education  the  national  laws,  in- 
cluding the  former  imperial  laws,  may  be  amended  only 
by  concurrent  laws  of  the  Federal  State  and  the  states 
affected  thereby;  except  those  legal  provisions  which  con- 
cern institutions  of  higher  learning  or  the  fixing  of  teachers' 
salaries.    The  existing  state  laws  may  be  amended  only  by 


306       NEW  CONSTITUTIONS  OF  EUROPE 

concurrent  laws  of  the  state  affected  thereby  and  of  the 
Federal  State. 

Sec.  43.     (1)  This  law  shall  become  effective  at  the  same 
time  as  the  federal  constitution. 
(2)  It  shall  be  executed  by  the  Ministry  of  the  State. 

SEITZ,  M.  P. 

MAYR,  M.  P.  HAUEIS,  M.  P. 

HANUSCH,  M.  p.  DEUTSCH,  M.  p. 

RENNEB,  M.  P.  ELLEISTBOGEN,  M.  p. 

BREISKY,  M.  p.  ROLLER,  M.  p. 

REISCH,  M.  P.  PESTA,  M.  p. 

HEINL,  M.  p.  GRUNBERGER,  M.  p. 


CHAPTER  XIII 
CZECHOSLOVAKIA 

1.  HISTORICAL  NOTE 

THE  new  state  of  Czechoslovakia,  as  its  boundaries  were 
defined  by  the  Peace  Conference,  contains,  with  some 
modifications,  the  territory  of  the  ancient  kingdom  of  Bo- 
hemia and  the  lands  of  Moravia,  Silesia,  and  Slovakia.1 
From  the  standpoint  of  the  mapmaker  the  formation  of 
this  state  was  a  sensational  settlement,  comparable  only  to 
that  of  Poland.  These  two  great  medieval  states  have  been 
revived  in  forms  appropriate  to  the  twentieth  century;  long- 
cherished  national  aspirations  have  been  accorded  political 
recognition.  The  future  will  show  whether  Hegel  was 
right  when  he  said  that  the  only  lesson  of  history  is  that 
men  learn  nothing  from  history;  whether  the  new  states 
will  avoid  the  weaknesses  and  blunders  that  were  fatal 
to  them  in  the  past. 

In  some  respects  the  record  of  Bohemia  is  quite  unique. 
Here  is  a  nation  in  the  very  centre  of  Europe,  which  after  playing 
a  memorable  part  in  the  field  of  political  and  religious  progress, 
and  becoming  thoroughly  imbued  with  western  civilization, 
was  crushed  ruthlessly  out  of  existence,  lay  like  a  corpse  for  two 
whole  centuries,  and  then  arose  once  more  to  recover,  almost 
unaided,  its  lost  nationhood.  Poland,  though  at  times  far  more 
brutally  treated,  never  sank  so  low;  and  even  the  supreme  crime 
of  partition  had  at  least  the  one  advantage  that  it  rendered  a 
uniform  system  of  denationalization  impossible  and,  by  im- 
parting to  Polish  culture  a  certain  quality  of  quicksilver,  saved 
it  from  utter  extinction.  But  Bohemia — her  nobility  well  nigh 
exterminated,  her  middle  class  driven  into  exile,  her  peasantry 
reduced  once  more  to  serfdom,  her  national  faith  suppressed, 

1Bohemia,  Moravia,  and  Silesia  were  provinces  of  the  Austrian  part  of  the  Dual 
Monarchy;  Slovakia  was  an  integral  part  of  Hungary. 

807 


Composition 
of  Czecho- 
slovakia 


Record  of 

Bohemia 

under 

Austrian 

rule 


308       NEW  CONSTITUTIONS  OF  EUROPE 


Czech  and 

Slovak 

revivals 


President 
Wilson  and 
Czecho- 
slovakia 


her  hierarchy  and  administration  alike  in  the  hands  of  foreigners 
— seemed  by  the  beginning  of  last  century  lost  beyond  all  possi- 
bility of  recovery.  It  is  told  that  Jungman,  one  of  the  pioneers 
of  Czech  philology,  was  in  the  habit  of  meeting  a  small  group  of 
other  patriots  in  a  Prague  inn,  and  that  on  one  occasion  he  ex- 
claimed, "If  this  roof  should  fall,  there  would  be  an  end  of  the 
Czech  national  movement."  The  truth  of  this  anecdote  has  been 
seriously  challenged,  and  even  if  true,  it  exaggerates  the  actual 
situation  of  that  day;  but  none  the  less  it  may  stand  as  sym- 
bolic of  the  dire  straits  into  which  the  nation  had  fallen.1 

The  origins  of  the  Czech  and  Slovak  national  revivals, 
the  repression  of  the  Czech  patriots  within  Austria,  the 
inclusion  of  the  liberation  of  the  Czechoslovaks  in  the 
Allied  war  aims,2  and  the  Congress  of  Oppressed  Nation- 
alities held  in  Rome  in  April,  1918,  make  an  interesting  but 
exceedingly  complicated  story.3  In  the  summer  of  1918,  the 
United  States  and  England  offered  some  encouragement, 
and  on  October  14,  the  Allied  Governments  were  notified 
that  a  provisional  Czechoslovak  government  had  been 
formed  under  the  Presidency  of  Professor  Masaryk.  On 
October  16,  Emperor  Charles  issued  a  manifesto  addressed 
"To  My  Peoples"  and  announcing  the  federalization  of 
Austria  (not  Austria-Hungary)  ,4  In  place  of  Austria  there 
were  to  be  four  national  states — German,  Czech,  Jugoslav, 
and  Ukrainian.  Trieste  was  to  be  a  free  port  and  the  Poles 
of  Galicia  were  to  be  allowed  to  unite  with  Poland. 
Morituri  te  salutamus. 

The  final  death  blow,  however,  was  dealt  by  President 
Wilson's  note  of  October  18.5  He  told  Count  Burian  that 
the  United  States  had  materially  modified  the  position 

^emperley,  Ed.,  A  History  of  the  Peace  Conference  of  Paris,  Vol.  IV,  p.  £37 
(London,  1921). 

The  Allied  note  to  President  Wilson  (January  10,  1917)  demanded  "the 
liberation  of  the  Italians,  as  also  of  the  Slavs,  Rumanians,  and  Czechoslovaks 
from  foreign  domination."  Baron  Sonnino,  relying  on  the  Secret  Treaty  of 
London,  opposed  the  inclusion  of  the  Jugoslavs  in  this  enumeration. 

3See  Temperley,  op.  tit.,  Vol.  IV,  Ch.  IV. 
4See  above,  p.  252. 
"See  above,  p.  252. 


CZECHOSLOVAKIA  309 

taken  in  the  Fourteen  Points  by  recognizing  the  belligerent 
Czechoslovak  Government.  On  October  27  Count  An- 
clrassy  (who  had  succeeded  Burian  as  Joint  Foreign 
Minister)  accepted  "President  Wilson's  standpoint  on  the 
Czechoslovak  and  Jugoslav  questions  as  a  basis  for  ne- 
gotiation" and  "annihilated  at  one  blow  not  merely  the 
Dual  System,  but  the  whole  structure  of  political,  dynas- 
tic, and  constitutional  theory  upon  which  *  Austria- 
Hungary'  had  rested  for  two  generations."1 

On  October  18,  the  independence  of  Czechoslovakia  was  Declaration 
proclaimed  in  Paris  by  the  Czechoslovakia  National  Coun-  of  Inde- 
cil  under  the  leadership  of  Masaryk,  Benes,  and  Stefanik. 
And  ten  days  later  the  Czech  National  Committee  in 
Prague  took  over  the  administration  of  civil  and  military 
affairs  in  Bohemia.  The  Paris  proclamation,  the  first  con- 
stitutional law  of  free  Czechoslovakia,  was  a  rather  liberal 
document;  it  rejected  the  divine  right  of  kings  for  "the  prin- 
ciples of  Lincoln  and  of  the  Declaration  of  the  Rights  of 
Man  and  the  Citizen."  It  went  on  to  declare  that  "Our  de- 
mocracy shall  rest  on  universal  suffrage;  women  shall  be 
placed  on  an  equal  footing  with  men  politically,  socially, 
and  culturally,  while  the  right  of  the  minority  shall  be  safe- 
guarded by  proportional  representation.  National  minor- 
ities shall  enjoy  equal  rights.  The  government  shall  be 
parliamentary  in  form  and  shall  recognize  the  principles  of 
initiative  and  referendum.  The  standing  army  will  be  re- 
placed by  militia.  The  Czechoslovak  nation  will  carry  out 
far-reaching  social  and  economic  reforms.  The  large  estates 
will  be  redeemed  for  home  colonization,  and  patents  of 
nobility  will  be  abolished.  ...  On  the  basis  of  de- 
mocracy mankind  will  be  reorganized.  .  .  .  We  believe 
in  democracy,  we  believe  in  liberty  and  liberty  for  ever- 
more."2 


^emperley,  op.  tit.,  Vol.  IV,  p.  265. 
*Ibid.,  pp.  266-267. 


The 

National 
Assembly 
and  the 
Constitu- 
tion 


310       NEW  CONSTITUTIONS  OF  EUROPE 

A  provisional  constitution  was  promulgated  by  the  Na- 
tional Committee  on  November  13, 1918.  It  provided  for 
an  enlargement  and  transformation  of  the  National 
Committee  into  a  National  Assembly  of  256  mem- 
bers. From  the  former  Austrian  provinces  the  members 
were  coopted  (not  elected)  in  proportion  to  the  strength 
of  the  existing  political  parties,  according  to  the  number  of 
votes  polled  by  each  at  the  last  election  of  the  Reichsrat. 
From  Slovakia  55  members  were  coopted  on  the  advice  of 
The  Slovak  National  Council.  The  task  of  the  National  As- 
sembly was  legislation  and  the  control  of  the  executive;  but 
it  was  understood  although  not  stated  that  the  Assembly 
would  also  frame  a  permanent  constitution.1  Compromises 
were  at  length  reached  on  all  debated  points,  and  the  con- 
stitution was  promulgated  on  February  29,  1920.2 


2.   THE  CONSTITUTION  OF  CZECHOSLOVAKIA 
THE  LAW  OF  FEBRUARY  29,  1920 

WHEREBY  THE  CONSTITUTIONAL  CHARTER  OF  THE   CZECHOSLOVAK 
REPUBLIC   IS   INTRODUCED 

We,  the  Czechoslovak  nation,  desiring  to  consolidate  the  per- 
fect unity  of  our  people,  to  establish  the  reign  of  justice  in  the 
Republic,  to  assure  the  peaceful  development  of  our  native 
Czechoslovak  land,  to  contribute  to  the  common  welfare  of  all 
citizens  of  this  State  and  to  secure  the  blessings  of  freedom  to 
coming  generations,  have  in  our  National  Assembly  this  29th 
day  of  February  1920  adopted  the  following  Constitution  for 
the  Czechoslovak  Republic;  and  in  doing  so  we  declare  that  it 
will  be  our  endeavor  to  see  that  this  Constitution  together  with 
all  the  laws  of  our  land  be  carried  out  in  the  spirit  of  our  history 
as  well  as  in  the  spirit  of  those  modern  principles  embodied  in 

1Dedek,  "The  Constitution  of  Czecho-Slovakia,"  Journal  of  Comparative 
Legislation  and  International  Law,  Third  Series,  Vol.  Ill,  p.  116  (January,  1921). 

*The  translation  here  used  is  an  English  version  printed  in  Prague  and  issued 
by  the  Societe  de  1'effort  de  la  Tchecoslovaquie,  apparently  with  official  sanction. 
It  has  excellent  introductions  and  translations  of  the  electoral  laws.  Other  ver- 
sions appeared  in  Current  History,  July,  1920,  and  the  Contemporary  Review,  Sep- 
tember, October,  and  November,  1920. 


CZECHOSLOVAKIA  311 

the  idea  of  self-determination,  for  we  desire  to  take  our  place 
in  the  Family  of  Nations  as  a  member  at  once  cultured,  peace- 
loving,  democratic,  and  progressive. 

[INTRODUCTORY  LAW] 

Article  I.  (1)  Enactments  which  are  in  conflict  with  the 
constitutional  charter  or  with  laws  which  may  supplement  or 
amend  it  are  invalid. 

(2)  The  constitutional  charter  may  be  altered  or  amended 
only  by  laws  specifically  designated  as  constitutional  laws. 

Art.  II.  A  Constitutional  Court  shall  decide  as  to  whether 
the  laws  of  the  Czechoslovak  Republic  and  of  the  Diet  of  Carpa- 
thian Ruthenia  (Russinia)  conform  with  Article  I. 

Art.  III.  (1)  The  Constitutional  Court  shall  consist  of  seven 
members,  two  of  whom  shall  be  appointed  by  the  High  Court 
of  Administration  and  two  by  the  High  Court  of  Justice;  the 
remaining  two  members  and  the  chairman  shall  be  nominated 
by  the  President  of  the  Republic. 

(2)  The  appointment  of  representatives  of  the  above- 
mentioned  courts  to  the  Constitutional  Court,  the  tenure  of 
office,  the  rules  of  procedure  and  the  definition  of  its  jurisdiction 
shall  be  established  by  a  specific  enactment. 

Art.  IV.  (1)  The  present  National  Assembly  shall  sit  until 
the  convocation  of  Parliament  (the  Senate  and  the  Chamber  of 
Deputies). 

(2)  Such  laws  as  may  have  been  enacted  by  the  National 
Assembly  but  not  made  public  in  the  official  record  by  the  day 
of  the  assembling  of  Parliament,  shall  not  be  promulgated  if 
returned  by  the  President  of  the  Republic  to  the  National  As- 
sembly. 

(3)  Regulations  of  the  provisional  constitution,  limiting  the 
period  of  exercise  of  the  rights  of  the  President  of  the  Republic 
(Article  11  of  the  provisional  constitution)  and  delimiting  the 
duty  of  the  Government  to  publish  the  law  enacted  shall  remain 
valid  as  to  laws  enacted  by  the  present  National  Assembly. 

Art.  V.  The  present  President  shall  remain  hi  office  until  a 
new  election  takes  place.  The  duties  and  obligations  of  the 
President,  as  defined  in  the  constitutional  charter,  become  ef- 
fective simultaneously  with  the  adoption  of  the  constitutional 
charter. 

Art.  VI.     Until  the  election  of  the  full  number  of  members 


312       NEW  CONSTITUTIONS  OF  EUROPE 

of  Parliament,  as  required  by  the  constitutional  charter,  the 
number  of  members  actually  elected  shall  determine  the  quorum 
necessary  for  the  enactment  of  legislation. 

Art.  VII.  (1)  The  provisions  of  Articles  I,  II,  III,  Paragraph 
1,  and  VI  shall  be  an  integral  part  of  the  constitutional  char- 
ter, as  set  forth  in  Article  33  of  that  charter. 

(2)  Provisions  as  to  the  execution  of  laws,  as  postulated  in 
the  constitutional  charter,  shall  not  form  part  of  that  charter, 
as  set  forth  in  the  preceding  paragraph,  unless  the  charter  pro- 
vides otherwise. 

Art.  VIII.  (1)  The  constitutional  charter  shall  become  valid 
on  the  day  of  its  proclamation. 

(2)  Article  20  does  not  apply  to  members  of  the  present 
National  Assembly. 

Art.  IX.  On  the  day  designated  in  Article  VIII,  Paragraph 
1,  all  laws  and  regulations  in  conflict  with  the  spirit  of  this  char- 
ter and  the  republican  form  of  the  state,  as  well  as  all  previously 
enacted  constitutional  laws,  shall  become  invalid,  even  if  part 
of  the  latter  are  not  opposed  to  the  constitutional  laws  of  the 
Czechoslovak  Republic. 

Art.  X.  The  foregoing  nine  articles  shall  become  valid  simul- 
taneously with  the  constitutional  charter.  The  execution  of 
these  enactments  is  hereby  placed  hi  the  hands  of  the  Govern- 
ment. 

THE  CONSTITUTIONAL  CHARTER  OF  THE 
CZECHOSLOVAK  REPUBLIC 

SECTION  I 
GENERAL  PROVISIONS 

Article  1.  (1)  The  people  are  the  sole  source  of  all  state 
power  in  the  Czechoslovak  Republic. 

(2)  This  constitutional  charter  determines  through  what  or- 
gans the  sovereign  people  shall  express  their  will  in  laws,  provides 
for  the  execution  of  these  laws,  and  guarantees  to  the  people 
their  rights  and  liberties.  Such  limitations  are  imposed  upon 
these  organs  of  government,  as  shall  preserve  to  the  people  all 
rights  guaranteed  by  this  charter. 

Art.  2.  The  Czechoslovak  state  shall  be  a  Democratic  Re- 
public, the  head  of  which  shall  be  an  elected  President. 

Art.  3.     (1)  The  territories  of  the  Czechoslovak  Republic 


CZECHOSLOVAKIA  313 

shall  form  a  united  and  indivisible  unit,  the  frontiers  of  which 
may  be  altered  only  by  constitutional  law. 

(2)  The  autonomous  territory  of  Carpathian  Russinia,  which 
shall  receive  the  widest  measure  of  self-government  compatible 
with  the  unity  of  the  Czechoslovak  Republic,  shall  be  an  integral 
part  of  this  unit  by  the  terms  of  its  voluntary  declaration  as  set 
forth  in  the  Treaty  between  the  Allied  Powers  and  the  Czecho- 
slovak Republic  of  September  10,  1919. 

(3)  Carpathian  Russinia  shall  have  its  own  Diet,  which  shall 
elect  its  presiding  officer  and  other  officials. 

(4)  This  Diet  shall  legislate  in  linguistic,  educational,  and  re- 
ligious matters,  in  matters  of  domestic  administration,  and  in 
such  other  matters  as  may  be  assigned  to  it  by  the  laws  of  the 
Czechoslovak  Republic.     Laws  enacted  by  this  Diet,  and  signed 
by  the  President  of  the  Republic,  shall  be  published  in  a  sepa- 
rate series  and  shall  be  counter-signed  by  the  Governor  of  Rus- 
sinia. 

(5)  Carpathian  Russinia  shall  be  represented  in  Parliament 
by  Deputies  and  Senators  elected  according  to  the   general 
suffrage  law  of  the  Czechoslovak  Republic. 

(6)  The  head  of  Russinia  shall  be  a  Governor,  appointed  by 
the  President  of  the  Czechoslovak  Republic  on  the  recommenda- 
tion of  the  Government,  and  he  shall  be  responsible  also  to  the 
Diet  of  Russinia. 

(7)  Public  officials  in  Russinia  shall  be,  in  so  far  as  possible, 
selected  from  the  population  of  Russinia. 

(8)  Details  as  to  the  right  of  suffrage  and  eligibility  to  the 
Diet  shall  be  defined  by  special  legislation. 

(9)  The  law  enacted  by  the  Parliament  defining  the  frontiers 
of  Carpathian  Russinia  shall  form  part  of  the  constitutional 
charter. 

Art.  4.     (1)  Citizenship  in  the  Czechoslovak  Republic  is  sin- 
gle and  uniform. 

(2)  The  law  regulates  the  conditions  governing  the  acquisi- 
tion, the  rights  and  duties,  and  the  termination  of  citizenship 
in  the  Czechoslovak  Republic. 

(3)  A  citizen  or  subject  of  a  foreign  state  cannot  at  the  same 
time  be  a  citizen  of  the  Czechoslovak  Republic. 

Art.  5.     (1)  The  capital  of  the  Republic  is  Prague. 

(2)  The  colors  of  the  Republic  are  white,  red,  and  blue. 

(3)  Official  emblems  and  flags  shall  be  determined  upon  by 
law. 


314       NEW  CONSTITUTIONS  OF  EUROPE 

SECTION  II 

LEGISLATIVE  POWERS,  CONSTITUTION  AND  COMPETENCY  OF 
PARLIAMENT  AND  OF  BOTH  ITS  CHAMBERS 

Art.  6.  (1)  The  legislative  power  of  the  whole  Czechoslovak 
Republic  shall  rest  in  the  hands  of  Parliament,  which  shall  be 
composed  of  a  Chamber  of  Deputies  and  a  Senate. 

(2)  The  seat  of  both  chambers  shall  be  at  Prague.  In  case 
of  urgent  necessity,  Parliament  may  be  temporarily  summoned 
to  some  other  locality  in  the  Czechoslovak  Republic. 

Art.  7.  (1)  The  legislative  and  administrative  powers  of  the 
former  Diets  is  hereby  abolished. 

(2)  Unless  they  provide  otherwise,  enactments  of  Parliament 
shall  be  binding  throughout  the  Czechoslovak  Republic. 

Art.  8.  The  Chamber  of  Deputies  shall  be  composed  of  300 
members,  elected  according  to  a  general,  equal,  direct  and  secret 
suffrage,  on  a  basis  of  proportional  representation.  Elections 
shall  be  held  on  Sundays. 

Art.  9.  The  right  to  vote  for  the  Chamber  of  Deputies  ap- 
pertains to  all  citizens  of  the  Czechoslovak  Republic  without  dis- 
tinction of  sex,  who  are  21  years  of  age  and  who  comply  with 
the  other  provisions  of  the  electoral  regulations. 

Art.  10.  All  citizens  of  the  Czechoslovak  Republic  without 
distinction  of  sex  who  are  30  years  of  age  and  who  comply  with 
the  conditions  of  the  suffrage  law  may  be  elected  as  Deputies 
to  the  Chamber. 

Art.  11.  The  term  for  which  the  Chamber  of  Deputies  is 
elected  shall  be  six  years. 

Art.  12.  Details  as  to  the  exercise  of  suffrage  rights  and  the 
manner  of  carrying  out  elections  are  set  forth  in  the  provisions 
dealing  with  elections  to  the  Chamber  of  Deputies. 

Art.  13.  The  Senate  shall  consist  of  150  members  elected 
according  to  general,  equal,  direct,  and  secret  suffrage  on  a 
basis  of  proportional  representation.  Elections  shall  be  held 
on  Sundays. 

Art.  14.  The  right  to  vote  for  the  Senate  appertains  to  all 
citizens  of  the  Czechoslovak  Republic  without  distinction  of  sex 
who  are  26  years  of  age  and  who  comply  with  the  other  provi- 
sions of  the  law  concerning  the  constitution  and  the  rights  and 
powers  of  the  senate. 

Art.  15.  All  citizens  of  the  Czechoslovak  Republic  without 
distinction  of  sex  who  are  45  years  of  age  and  who  comply  with 


CZECHOSLOVAKIA  315 

the  other  conditions  concerning  the  constitution  and  the  rights 
and  powers  of  the  Senate  are  eligible  to  the  Senate. 

Art.  16.  The  term  for  which  the  Senate  is  elected  shall  be 
eight  years. 

Art.  17.  Specific  provisions  as  to  the  exercise  of  the  suffrage 
and  the  manner  of  elections  are  set  forth  in  the  law  governing 
the  constitution  and  law  of  the  Senate. 

Art.  18.  No  person  may  be  at  the  same  time  a  member  of 
both  chambers. 

Art.  19.  (1)  An  electoral  court  shall  pass  upon  the  validity 
of  elections  to  Parliament. 

(2)  Details  shall  be  settled  by  law. 

Art.  20.  (1)  If  a  civil  servant  become  a  member  of  Parlia- 
ment, he  shall  be  granted  leave  automatically  pending  his  term 
in  Parliament;  he  shall  be  entitled  to  his  regular  salary,  but  with 
no  local  allowances,  and  he  shall  retain  from  his  official  duties 
his  right  to  seniority  promotion.  University  professors  are  en- 
titled to  leave  of  absence;  if  they  make  use  of  this  right,  the 
same  provisions  apply  to  them  as  to  other  state  servants. 

(2)  All  other  public  servants  and  officials  shall  have  the  right 
to  obtain  leave  pending  then*  term  as  members  of  Parliament. 

(3)  Members  of  Parliament  cannot  enter  the  civil  service  un- 
til after  the  expiration  of  one  year  from  the  tune  they  cease  to 
be  members. 

(4)  This  provision  does  not  apply  to  Ministers.    The  time 
limit  in  section  3  shall  not  affect  deputies  or  senators  who  were 
civil  servants  before  they  became  members  of  Parliament,  pro- 
vided that  they  return  to  the  same  department. 

(5)  District  governors  cannot  become  members  of  Parlia- 
ment. 

(6)  Members  of  the  Constitutional  Court,  commissioners  of 
an  electoral  court  and  members  of  district  assemblies  cannot  at 
the  same  time  be  members  of  Parliament. 

Art.  21.  Members  of  either  chamber  can  resign  their  man- 
dates at  any  time. 

Art.  22.  (1)  Members  of  Parliament  shall  execute  their 
functions  in  person.  They  shall  not  receive  orders  from  any- 
body. 

(2)  They  shall  not  address  to  public  authorities  requests  in 
the  personal  interest  of  individuals,  unless  they  do  so  in  their 
professional  capacity. 

(3)  At  their  first  sitting,  members  of  Parliament  shall  take 


the  following  oath:  "I  pledge  myself  to  be  faithful  to  the  Czecho- 
slovak Republic,  to  uphold  its  laws  and  to  carry  out  my  man- 
date to  the  best  of  my  knowledge  and  conscience."  Refusal  to 
take  this  oath  or  the  making  of  any  reservation  thereto  shall  dis- 
qualify for  membership  in  Parliament. 

Art.  23.  Members  of  Parliament  shall  not  be  prosecuted  for 
the  exercise  of  their  functions  as  members.  For  statements 
made  in  the  chamber,  members  shall  be  amenable  only  to  the 
disciplinary  statutes  of  the  chamber. 

Art.  24.  (1)  Only  with  the  consent  of  the  respective  cham- 
bers shall  members  of  Parliament  become  liable  to  civil  or  criminal 
prosecution.  If  this  consent  be  not  granted,  such  prosecution 
shall  become  permanently  null  and  void. 

(2)  This  provision  does  not  apply  to  the  legal  liability  of  a 
member  as  responsible  editor.1 

Art.  25.  If  a  member  of  either  chamber  be  apprehended 
and  arrested  in  the  commission  of  a  criminal  act,  the  court  or 
other  authority  having  jurisdiction  shall  inform  the  Chairman 
of  the  respective  chamber  of  the  arrest.  If  the  chamber  or  the 
committee  defined  under  Article  54  does  not  within  a  fortnight 
give  its  consent  to  the  arrest,  it  becomes  null  and  void  forthwith. 
If  the  committee  does  consent  to  the  arrest,  the  chamber  must 
give  its  decision  within  14  days  after  its  first  sitting. 

Art.  26.  Members  of  either  chamber  shall  have  the  right  to 
refuse  to  give  testimony  in  reference  to  matters  confided  to 
them  as  members  of  the  chamber,  even  after  they  cease  to  be 
members.  In  the  trial  of  a  case  of  attempting  to  corrupt  a 
member,  testimony  cannot  be  refused. 

Art.  27.  Members  of  either  chamber  shall  have  a  right  to 
remuneration  as  specified  by  law. 

Art.  28.  (1)  The  President  of  the  Republic  shall  summon 
both  chambers  twice  a  year  for  a  spring  and  an  autumn  session, 
the  former  to  begin  in  March,  the  latter  in  October. 

(2)  Furthermore,  he  may  summon  Parliament  for  extraordi- 
nary sessions  whenever  he  may  deem  it  necessary.     If  at  least 
one-half  of  the  members  of  either  chamber  applies  to  the  Prime 
Minister  stating  the  object  for  summoning  it,  the  President  shall 
summon  the  Assembly  within  a  fortnight  from  the  date  of  such 
application;  should  he  fail  to  do  so,  the  Chairmen  of  both  cham- 
bers shall  convoke  Parliament  within  the  following  fortnight. 

(3)  If  four  months  shall  have  elapsed  from  the  last  ordinary 
'In  reference  to  libel  and  incitement  to  crime. 


CZECHOSLOVAKIA  317 

session,  the  President  is  obliged  to  summon  Parliament,  if  at 
least  two-fifths  of  either  chamber  so  desire,  within  a  fortnight 
from  the  date  of  their  application.  Should  he  fail  to  do  so,  the 
Chairmen  of  both  chambers  shall,  within  the  following  fort- 
night, convoke  Parliament. 

Art.  29.  The  session  of  both  chambers  shall  begin  and  end 
simultaneously. 

Art.  30.  (1)  The  President  of  the  Republic  shall  declare 
the  session  of  Parliament  at  an  end. 

(2)  He  may  prorogue  Parliament  for  not  longer  than  a  month, 
and  not  more  frequently  than  once  a  year. 

Art.  31.  (1)  The  President  shall  have  the  right  to  dissolve 
Parliament. 

(2)  He  shall  not  be  allowed  the  exercise  of  this  right  during 
the  last  six  months  of  his  term  of  office.     After  the  expiration 
of  the  electoral  term,  or  after  the  dissolution  of  either  chamber, 
new  elections  shall  take  place  within  60  days. 

(3)  The  dissolution  of  the  Senate  shall  not  stay  criminal  pro- 
ceedings inaugurated  before  the  Senate  in  accordance  with  Ar- 
ticles 67  and  79. 

Art.  32.  Either  chamber  may  function,  unless  otherwise 
provided  in  this  law,  if  at  least  two-thirds  of  the  members  are 
present.  Its  decisions  are  valid  should  a  majority  of  one-half 
of  those  present  be  obtained. 

Art.  33.  The  decision  as  to  a  declaration  of  war  or  as  to  the 
amendment  of  this  charter  shah*  require  a  three-fifths  majority 
of  all  the  members  of  each  chamber. 

Art.  34.  (l)  The  decision  of  the  Chamber  of  Deputies  for  the 
impeachment  of  the  President  of  the  Republic,  the  Prime  Min- 
ister, or  other  members  of  the  Government,  shall  require  a  two- 
thirds  majority  with  two-thirds  of  the  members  present. 

(2)  The  procedure  before  the  Senate  sitting  as  a  court  of 
prosecution  shall  be  regulated  by  law. 

Art.  35.  Each  chamber  shall  elect  its  own  Chairman  and 
other  officers. 

Art.  36.  The  sittings  of  both  chambers  shall  be  public. 
Sittings  in  camera  may  be  held  only  where  the  rules  of  procedure 
so  provide. 

Art.  37.  (1)  The  basic  principles  of  the  relations  between 
both  chambers  and  between  the  Government  and  Parliament 
and  between  the  public  and  Parliament  shall  be  regulated  by 
specific  law,  which  shall  conform  to  the  constitutional  charter. 


318       NEW  CONSTITUTIONS  OF  EUROPE 

The  internal  order  of  each  chamber  shall  be  regulated  by  its  own 
rules  of  procedure. 

(2)  So  long  as  the  Chamber  of  Deputies  and  the  Senate  do 
not  create  a  new  body  of  rules,  the  rules  of  procedure  of  the 
present  National  Assembly  shall  be  binding  upon  them. 

Art.  38.  (1)  Whenever  both  chambers  meet  in  joint  session  as 
the  National  Assembly  (Articles  56,  59,  61, 65),  this  body  shall  be 
governed  by  the  rules  of  procedure  of  the  Chamber  of  Deputies. 

(2)  Such  a  joint  session  shall  be  summoned  by  the  Prime 
Minister,  and  its  presiding  officer  shall  be  the  Chairman  of  the 
Chamber  of  Deputies. 

(3)  The  Chairman  of  the  Senate  shall  act  as  Vice-Chairman 
of  the  National  Assembly. 

Art.  39.  The  ministers  shall  have  the  right  to  participate 
at  any  time  in  the  meetings  of  either  chamber  or  of  committees. 
They  shall  be  allowed  to  speak  whenever  they  demand  to  be 
heard. 

Art.  40.  (1)  At  the  request  of  either  chamber  or  of  a  com- 
mittee, a  minister  shall  appear  before  that  body. 

(2)  Otherwise  he  may  be  represented  by  an  official  of  his  de- 
partment authorized  by  him. 

Art.  41.  (1)  Proposals  for  legislation  may  originate  either 
with  the  Government  or  in  either  chamber. 

(2)  Every  proposal  made  by  members  of  either  chamber  shall 
be  accompanied  by  an  estimate  of  the  financial  issue  involved 
and  by  a  proposal  for  the  defraying  of  the  necessary  cost. 

(3)  Proposals  of  the  Government  for  budget  and  army  bills 
must  first  be  presented  to  the  Chamber  of  Deputies. 

Art.  42.  A  constitutional  law  shall  be  valid  only  with  the 
consent  of  both  chambers.  This  applies  also  to  other  laws, 
unless  otherwise  provided  by  Articles  43,  44,  and  48. 

Art.  43.  (1)  The  Senate  shall  act  on  a  bill  proposed  and 
passed  by  the  Chamber  of  Deputies  within  six  weeks,  and  on 
the  budget  and  army  bills  within  one  month.  The  Chamber 
of  Deputies  shall  act  on  a  bill  proposed  and  passed  by  the  Senate 
within  three  months. 

(2)  These  periods  are  counted  from  the  day  of  presentation 
of  printed  bills  by  one  chamber  to  the  other,  and  may  be  altered 
by  mutual  consent;  the  Senate  must  act  in  all  cases  of  budget 
and  army  bills  within  one  month  as  set  forth  in  the  preceding 
paragraph. 

(3)  If  during  such  a  period,  the  term  of  the  chamber  which 


CZECHOSLOVAKIA  319 

is  to  take  action  on  the  bill  of  the  other  expires,  or  if  the  cham- 
ber be  prorogued  or  dissolved,  the  date  is  reckoned  from  the 
first  day  of  its  next  sitting. 

(4)  If  either  chamber  does  not  give  its  decision  within  the 
period  specified,  it  is  presumed  that  it  gives  its  assent  to  the 
decision  of  the  first  chamber. 

Art.  44.  (1)  A  measure  passed  by  the  Chamber  of  Deputies 
shall  become  law,  despite  an  adverse  decision  of  the  Senate,  if 
the  Chamber  of  Deputies  declares  by  a  majority  of  50  per  cent, 
of  all  its  members  that  it  adheres  to  its  first  decision.  Should 
the  Senate  reject  a  draft  bill  passed  by  the  Chamber  of  Deputies 
by  a  majority  of  all  its  members,  the  bill  becomes  law  provided 
that  the  Chamber  of  Deputies  reenacts  its  decision  by  a  three- 
fifths  majority  of  all  its  members. 

(2)  Proposals  of  the  Senate  shall  be  referred  to  the  Chamber 
of  Deputies:  Should  the  Chamber  of  Deputies  reject  a  proposal 
of  the  Senate  and  if  the  latter  reenacts  its  bill  by  a  50  per  cent, 
majority  of  all  its  members,  the  bill  shall  be  referred  back  to  the 
Chamber  of  Deputies.     Should  the  Chamber  of  Deputies  re- 
ject the  bill  for  the  second  time  by  a  majority  of  50  per  cent,  of 
all  its  members,  the  bill  shall  not  become  law. 

(3)  Bills  so  rejected  may  not  be  presented  to  either  chamber 
until  after  the  lapse  of  one  year. 

(4)  Should  either  chamber  amend  a  bill  originating  in  the 
other  chamber,  its  action  shall  be  deemed  a  rejection  of  the  bill. 

Art.  45.  Should  either  chamber  have  under  consideration 
a  bill  already  passed  by  it  or  a  bill  passed  by  the  other  chamber 
(Article  44,  Paragraph  2),  and  should  it  be  dissolved  or  its  term  of 
office  expire  before  action  has  been  taken,  its  new  decision  shall 
be  considered  its  second  action  in  accordance  with  Article  44. 

Art.  46.  (1)  Should  Parliament  reject  a  bill  presented  by 
the  Government,  the  latter  can  proclaim  a  referendum,  but  this 
action  on  the  part  of  the  Government  must  be  unanimous. 

(2)  All  citizens  qualified  to  vote  for  the  Chamber  of  Deputies 
shall  be  qualified  to  vote  at  the  referendum. 

(3)  The  method  of  referendum  shall  be  determined  by  law. 

(4)  Referendum  is  inadmissible  in  respect  of  such  govern- 
ment bills  as  amend  the  constitution.     (Article  I,  Introductory 
Law.) 

Art.  47.  The  President  of  the  Republic  shall  have  the  right 
to  return  with  comments  any  bill  passed  by  Parliament  within 
a  month  of  its  presentation  to  the  Government. 


320       NEW  CONSTITUTIONS  OF  EUROPE 

Art.  48.  (1)  Should  both  chambers,  by  ballot,  taken  on 
roll  call,  affirm  the  returned  bill  by  a  majority  of  50  per  cent,  of 
all  their  members,  the  bill  shall  become  law. 

(2)  Should  the  bill  not  receive  a  majority  of  votes  in  both 
chambers,  the  bill  becomes  law,  provided  that  the  Chamber 
of  Deputies  in  the  new  ballot,  taken  by  roll  call,  passes  it  by  a 
three-fifths  majority  of  all  its  members. 

(3)  Should  it  be  a  bill  for  the  adoption  of  which  the  presence 
of  a  larger  number  of  members  and  a  larger  majority  is  required, 
it  is  necessary  that  such  presence  and  majority  be  obtained  for 
the  adoption  of  the  returned  bill. 

(4)  Provisions  under  Article  45  apply  accordingly. 

Art.  49.  (1)  For  a  bill  to  become  valid  as  law,  it  must  be 
made  public  as  specified  by  statute. 

(2)  For  the  proclamation  of  all  laws  the  following  preamble 
must  be  prefaced:  "The  Parliament  of  the  Czechoslovak  Re- 
public has  resolved  upon  the  following  law." 

(3)  The  law  shall  be  published  within  eight  week  days  from 
the  expiration  of  the  period  laid  down  in  Article  47.     Should  the 
President  make  use  of  his  right  referred  to  in  Article  47,  the 
law  shall  be  issued  within  eight  week  days  of  the  announcement 
of  its  reenactment  by  Parliament  to  the  Government  (Article 
48). 

Art.  50.  In  every  law  it  shall  be  specified  to  which  member 
of  the  Government  its  execution  is  entrusted. 

Art.  51.  (1)  The  law  shall  be  signed  by  the  President  of  the 
Republic,  the  Prime  Minister,  and  the  minister  entrusted  with 
its  execution.  If  the  President  be  incapacitated  or  ill,  and  there 
is  no  Vice-President,  the  Prime  Minister  may  sign  on  behalf  of 
the  President. 

(2)  The  Prime  Minister  may  be  represented  for  the  purposes 
of  signing  laws  as  specified  by  Article  71. 

Art.  52.  (1)  Each  chamber  shall  have  the  right  to  put  ques- 
tions to  the  Prime  Minister  and  other  members  of  the  Govern- 
ment on  matters  within  the  scope  of  their  competence,  to  enquire 
into  administration,  to  elect  committees  to  whom  the  ministers 
shall  provide  information,  and  to  adopt  proclamations  and  reso- 
lutions. 

(2)  The  Prime  Minister  and  the  members  of  the  Government 
shall  answer  questions  put  to  them. 

Art.  53.  The  exercise  of  control  of  the  financial  administra- 
tion and  of  the  state  debt  shall  be  regulated  by  law. 


CZECHOSLOVAKIA  321 

Art.  54.  (1)  During  the  period  elapsing  between  the  dis- 
solution of  either  chamber  and  its  reassemblage  or  between  the 
expiration  of  its  term  of  office  and  its  convocation  and  during 
the  period  of  adjournment,  there  shall  sit  a  committee  of  twenty- 
four  members.  Sixteen  members  of  this  committee,  with  an 
equal  number  of  alternates,  shall  be  chosen  by  the  Chamber  of 
Deputies  from  its  members,  and  eight  members,  with  an  equal 
number  of  alternates,  shall  be  chosen  by  the  Senate  from  its 
members.  Each  alternate,  shall  represent  only  the  member  of 
the  committee,  as  the  alternate  to  whom  he  has  been  chosen. 
This  committee  shall  act  on  all  matters  of  immediate  urgency, 
even  if  in  ordinary  circumstances  they  should  require  the  enact- 
ments of  legislation  and  shall  exercise  control  of  all  government 
and  executive  powers.  The  term  of  office  of  the  committee 
is  one  year. 

(2)  The  first  election  shall  take  place  immediately  after  both 
chambers  organize.     Presiding  officers  of  both  chambers  shall 
vote.     When  a  chamber  shall  meet  after  election,  the  members 
of  the  committee  of  twenty-four  shall  be  elected  by  the  newly 
organized  chamber  even  if  the  term  of  office  of  preceding  mem- 
bers of  the  committee  of  twenty-four  has  not  expired. 

(3)  Elections  shall  be  based  on  the  principle  of  proportional 
representation.    Party    coalition    is    admissible.    Should    all 
parties  agree  on  the  choice  of  candidates,  the  committee  shall 
be  elected  by  the  vote  of  the  chamber.     Should  more  than 
twenty  Deputies  and  ten  Senators  oppose  such  election,  it  shall 
be  carried  out  as  at  first  provided. 

(4)  Members  of  the  committee  shall  remain  in  office  until  a 
new  committee  is  elected.     Alternates  take  the  place  of  members 
unable  temporarily  or  permanently  to  carry  out  their  duties. 
Should  a  member  or  alternate  be  incapacitated  for  service,  while 
Parliament  is  in  session,  bye-elections  to  fill  his  post  for  the 
balance  of  the  term  of  the  committee  shall  be  held.    The  new 
member  must  belong  to  the  same  political  group  as  the  old 
member,  unless  that  group  decides  not  to  present  a  candidate 
or  to  refrain  from  voting. 

(5)  A  member  of  the  Government  shall  not  be  a  member  or 
alternate  of  the  committee  of  twenty-four. 

(6)  When  the  committee  has  been  elected,  it  shall  elect  its 
chairman  and  second  vice-chairman  from  among  the  members 
elected  by  the  Chamber  of  Deputies  and  a  first  vice-chairman 
from  among  the  members  elected  by  the  Senate. 


322       NEW  CONSTITUTIONS  OF  EUROPE 

(T)  The  members  of  the  committee  shall  be  subject  to  the 
provisions  in  Articles  23  to  27  of  the  constitutional  charter. 

(8)  The  committee  shall  be  competent  in  all  matters  falling 
within  the  legislative  and  administrative  powers  of  Parliament 
excepting: 

(a)  The   election  of  the  President  or  the  Vice-president 
of  the  Republic. 

(b)  The   amendment   of  the  constitutional   charter    (see 
Article  I  of  the  Introductory  Law)  and  the  changing  of  the 
competence    of    public    officials,    unless    it    be    a  question 
of  widening  the  scope  of  their  activities  by  new  duties. 

(c)  Burdening    the    citizens    in    the    state    with  perma- 
nent financial  obligations,  increasing  the  military  duties  of 
the  citizens  or  disposing  of  state  property. 

(d)  Giving  consent  to  a  declaration  of  war. 

(9)  Provisions  which  under  ordinary  circumstances  would 
require  the  enactment  of  legislation  or  expenditures  apart  from 
the  budget,  require  the  assent  of  hah*  of  all  the  members. 

(10)  In  all  other  cases  the  presence  of  half  of  the  members 
shall  be  sufficient  and  a  50  per  cent  majority  of  those  present 
shall  be  decisive.     The  chairman  shall  vote  only  to  cast  the 
decisive  vote. 

(11)  Urgent  provisions  which  under  ordinary  circumstances 
could  be  promulgated  only  by  enactments  of  legislation,  are 
admissible  only  on  the  recommendation  of  the  Government  ap- 
proved by  the  President  of  the  Republic. 

(12)  Provisions  of  the  committee  referred  to  in  the  last  para- 
graph shall  have  the  provisional  validity  of  law  only  if  published 
in  the  official  record  with  reference  to  Article  54  of  the  consti- 
tutional charter  and  if  signed  by  the  President  of  the  Republic, 
by  the  Prime  Minister  or  his  Deputy  and  half  of  the  members 
of  the  Government.     Provisions  to  which  the  President  has 
refused  to  assent  cannot  be  entered  on  record. 

(13)  The  Constitutional  Court  shall  have  jurisdiction  over 
such   provisions    of   this   committee   as    under   ordinary   cir- 
cumstances would  require  the  enactment   of  legislation,  and 
therefore  all  such  provisions  shall  be  laid  before  it  by  the 
Government    simultaneously    with    their    publication    in    the 
record. 

(14)  The  chairman  and  the  vice-chairman  of  the  committee 
shall  report  at  the  next  meeting  of  the  Chamber  of  Deputies 
and  of  the  Senate  the  activities  of  the  committee,  even  if  mean- 


CZECHOSLOVAKIA  323 

while  their  terms  of  office  as  members  of  Parliament  shall  have 
expired. 

(15)  Provisions  not  approved  by  both  chambers  within  two 
months  after  their  first  session  shall  lose  their  validity. 


SECTION  III 
GOVERNMENTAL  AND  EXECUTIVE  POWERS 

Art.  55.     Decree  shall  be  issued  only  for  the  execution  and 
within  the  limitations  of  each  specific  law. 

President  of  the  Republic 


Art.  56.  (1)  The  President  of  the  Republic  shall  be  elected 
by  the  National  Assembly  (Article  38). 

(2)  Any  citizen  of  the  Czechoslovak  Republic,  eligible  to  the 
Chamber  of  Deputies  and  not  less  than  35  years  of  age,  may  be 
elected  President  of  the  Republic  (Article  67). 

Art.  57.  (1)  The  election  shall  be  valid  only  if  half  of  all 
members  of  both  chambers  shall  be  present  and  if  a  majority 
of  three-fifths  of  those  present  shall  be  obtained. 

(2)  Should  two  ballots  produce  no  result,  a  third  ballot  shall 
be  cast  to  decide  between  those  two  candidates  who  at  the  pre- 
vious balloting  obtained  the  greatest  number  of  votes.     The 
candidate  who  obtains  the  largest  number  of  votes  shall  be 
elected.     In  the  case  of  a  tie,  the  decision  shall  be  made  by  lot. 

(3)  Details  shall  be  determined  by  law. 

Art.  58.  (1)  The  period  of  office  shall  be  counted  from  the 
day  when  the  new  President  takes  his  oath  according  to  Article 
65. 

(2)  The  term  of  office  shall  be  seven  years. 

(3)  Elections  shall  be  held  during  the  last  four  weeks  prior 
to  the  expiration  of  the  President's  term  of  office. 

(4)  No  one  shall  be  elected  more  than  twice  in  succession. 
He  who  has  been  elected  President  twice  in  succession  cannot 
again  be  elected  until  the  expiration  of  seven  years  from  his 
last  term  of  office.     This  provision,  however,  does  not  apply  to 
the  first  President  of  the  Czechoslovak  Republic. 

(5)  The  President  remains  in  office  until  his  successor  shall 
be  elected. 


324       NEW  CONSTITUTIONS  OF  EUROPE 

Art.  59.  Should  the  President  die  or  resign  his  position  dur- 
ing his  term  of  office,  a  new  election  shall  be  held  according  to 
Articles  56  and  57.  The  President  so  elected  shall  serve  seven 
years.  The  National  Assembly  shall  be  convened  for  this  pur- 
pose within  fourteen  days  (Article  38). 

Art.  60.  Until  a  new  President  is  elected  (Article  59)  or 
should  the  President  be  unable  to  execute  the  duties  of  his 
office,  the  execution  of  his  functions  shall  appertain  to  the  Gov- 
ernment which  may  invest  the  Prime  Minister  with  the  specific 
functions. 

Art.  61.  (1)  Should  the  President  be  unable  to  execute  the 
duties  of  his  office  for  more  than  six  months  (Article  60),  and 
should  the  Government  in  the  presence  of  three-quarters  of  its 
members  so  decide,  the  National  Assembly  (Article  38)  shall 
elect  a  Vice-president  who  shall  remain  in  office  until  the  Presi- 
dent shall  be  able  to  resume  his  functions. 

(2)  Disqualifications  for  presidential  office  (Article  58)  shall 
apply  to  the  office  of  Vice-president. 

Art.  62.  The  same  provisions  as  to  the  election  of  the  Presi- 
dent shall  apply  to  the  election  of  the  Vice-president. 

Art.  63.  (1)  The  President  of  the  Republic  shall  not  be  at 
the  same  time  a  member  of  Parliament.  Should  a  member  be 
elected  Vice-president,  he  shall  not  during  his  service  as  Vice- 
president  fulfil  his  mandate  as  member  of  Parliament. 

(2)  The  President's  official  residence  shall  be  in  Prague. 

II 

Art.  64.  (1)  The  rights  and  duties  of  the  President  of  the 
Republic  are  as  follows: 

(a)  He   shall   represent    the   state   in   its   relations  with 
other  states,  shall  negotiate  and  ratify  international  treat- 
ies.    Commercial    treaties,    and    treaties    which    for    the 
state  or  its  citizens  entail  financial  or  personal  burdens, 
especially  military   burdens,    as    well    as    treaties    affecting 
the   territories   of    the    state,    require    the    affirmation    of 
Parliament.     The  affirmation  of  Parliament  takes  the  form 
of   a   constitutional   law    (Article   I   of    the    Introductory 
Law); 

(b)  He  shall  receive  and  appoint  diplomatic  representatives; 

(c)  He  shall  declare  the  existence  of  a  state  of  war,  shall 
declare   war   with   the    previous    consent    of    Parliament, 


CZECHOSLOVAKIA  325 

and  shall  lay  before  Parliament  for  approval  peace  treaties 
which  have  been  concluded; 

(d)  He    shall   convoke,    prorogue,   and    dissolve    Parlia- 
ment (Articles  28-31)  and  shall  proclaim  its  sessions  at  an 
end; 

(e)  He  shall  have  the  right  to  return  with  comment  any 
law   enacted   by   Parliament    (Article    47).     He    shall   sign 
all  laws    enacted    by    Parliament    (Article    51),    all    laws 
enacted  by  the  Diet  of  Carpathenian  Ruthenia  (Article  3) 
and  the  ordinances  of  the  committee  of  twenty-four  (Arti- 
cle 54) ; 

(f)  He  shall  report  verbally  or  in  writing  to  the  National 
Assembly  on  the  state  of  the  Republic,  and  shall  recom- 
mend for   consideration   measures  which  he  deems  neces- 
sary and  useful; 

(g)  He  shall  appoint  and  dismiss  Cabinet  ministers  and 
define  their  number; 

(h)  He  shall  nominate  university  professors,  judges,  all 
state  officials  and  army  officers  of  the  sixth  class  up- 
ward; 

(i)  He  shall  grant  donations  and  pensions  in  special 
cases  on  the  recommendation  of  the  Government; 

(j)  He  shall  be  commander-in-chief  of  the  armed  forces 
of  the  Republic; 

(k)  He  shall  grant  pardon  as  per  Article  103. 
(2)  All  governmental  and  executive  power,  in  so  far  as  it  does 
not  or  shall  not  explicitly  appertain  to  the  President  according 
to  the  constitutional  charter  and  the  laws  adopted  after  Novem- 
ber 15,  1918,  shall  be  reserved  to  the  Government  (Article  TO). 

Ill 

Art.  65.  The  President  of  the  Republic  shall  take  an  oath 
before  the  National  Assembly  (Article  38)  on  his  honor  and 
conscience  to  look  to  the  welfare  of  the  Republic  and  its  people, 
and  to  abide  by  the  constitution  and  laws. 

Art.  66.  The  President  of  the  Republic  shall  not  be  answer- 
able at  law  in  the  exercise  of  his  functions.  The  Government 
shall  be  answerable  for  all  the  President's  official  utterances. 

Art.  67.  (1)  He  may  be  prosecuted  only  for  high  treason 
before  the  Senate  upon  an  indictment  found  against  him  by 
the  Chamber  of  Deputies  (Article  34).  The  only  punishment 


326       NEW  CONSTITUTIONS  OF  EUROPE 

shall  be  the  loss  of  his  office  and  permanent  disqualification  for 
the  Presidency. 

(2)  Details  shall  be  determined  by  law. 

Art.  68.  Every  governmental  or  executive  act  of  the  Presi- 
dent shall  also  bear  the  signature  of  the  member  of  the  Govern- 
ment responsible  for  its  execution. 

Art.  69.  The  same  provisions  shall  apply  to  the  Vice- 
president  that  apply  to  the  President  of  the  Republic. 

The  Government 

Art.  70.  (1)  The  Prime  Minister  and  other  ministers  of  the 
Government  shall  be  appointed  and  dismissed  by  the  President 
of  the  Republic. 

(2)  The  official  seat  of  the  Government  shall  be  in  Prague 
(Article  6,  Paragraph  2). 

Art.  71.  The  Government  shall  choose  from  among  the 
members  a  Deputy  Prime  Minister.  Should  this  Deputy  fail  to 
attend,  he  shall  be  represented  by  the  oldest  member  of  the 
Government. 

Art.  72.  The  President  of  the  Republic  shall  determine  as 
to  which  member  of  the  Government  shall  direct  each  depart- 
ment. 

Art.  73.  The  members  of  the  Government  shall  take  an 
oath  before  the  President  on  their  honor  and  conscience  that 
they  will  conscientiously  and  impartially  perform  their  duties 
and  abide  by  the  constitution  and  other  laws  of  the  Repub- 
lic. 

Art.  74.  No  member  of  the  Government  shall  be  a  member 
of  the  board  of  directors  or  controllers  or  a  representative  of 
any  limited  liability  company,  carrying  on  a  business  for  profit. 

Art.  75.  The  Government  shall  be  responsible  to  the  Cham- 
ber of  Deputies,  which  may  vote  its  lack  of  confidence  in  the 
Government.  Such  a  vote  shall  be  valid  if  more  than  hah*  of 
all  the  members  are  present,  if  a  50  per  cent,  majority  be  ob- 
tained, and  if  the  vote  be  taken  by  roll  call. 

Art.  76.  Every  motion  for  a  vote  of  lack  of  confidence  shall 
be  signed  by  not  less  than  a  hundred  deputies  and  shall  be  re- 
ferred to  a  committee  which  must  report  thereon  within  eight 
days. 

Art.  77.  The  Government  may  bring  forward  before  the 
Chamber  of  Deputies  a  proposal  for  a  vote  of  confidence.  Such 


CZECHOSLOVAKIA  327 

proposal  shall  be  acted  upon  without  being  referred  to  a  com- 
mittee. 

Art.  78.  (1)  Should  the  Chamber  of  Deputies  vote  lack  of 
confidence  in  the  Government  or  should  it  reject  the  Govern- 
ment's proposal  for  a  vote  of  confidence,  the  Government  shall 
resign  to  the  President.  The  President  shall  then  determine 
who  shall  direct  governmental  affairs  until  a  new  Government 
be  formed. 

(2)  Should  the  Government  resign  at  a  time  when  there  is  no 
President  or  Vice-president,  the  decision  as  to  the  resignation 
and  as  to  the  direction  of  governmental  affairs  shall  be  referred 
to  the  committee  defined  under  Article  54. 

Art.  79.  (1)  Should  the  Prime  Minister  or  any  other  mem- 
ber of  the  Government  either  consciously  or  from  gross  neglect 
violate  the  constitution  or  other  laws  while  acting  in  his  official 
capacity,  he  shall  be  responsible  at  law. 

(2)  The  right  of  prosecution  shall  be  reserved  to  the  Chamber 
of  Deputies  (Article  34).    The  trial  shall  be  conducted  by  the 
Senate. 

(3)  Details  shall  be  determined  by  law. 

Art.  80.  The  Government  shall  be  competent  to  act  as  a 
body  if  in  addition  to  the  Prime  Minister  or  his  Deputy  more 
than  half  the  Ministers  be  present. 

Art.  81.     The  Government  shall  decide  in  session: 

(a)  Government  draft  bills  for  Parliament,  Government 
decrees  (Article  84),  as  well  as  any  proposals  that  the  Presi- 
dent may  make  in  the  exercise  of  his  right  defined  under 
Article  47; 

(b)  All  matters  of  a  political  nature; 

(c)  Appointments   of   judges,    state   officials,    and   army 
officers  of  the  eighth  class  and  higher  grades,  so  far  as  such 
appointments  shall  fall  under  the  jurisdiction  of  the  central 
authorities;  as  well  as  proposals  for  appointments  of  officials 
nominated  by  the  President  of  the  Republic  (Article  64, 
Paragraph  1,  Subdivision  H). 

Art.  82.  The  President  of  the  Republic  shall  have  the  right 
to  be  present  at  and  to  preside  over  meetings  of  the  Government 
and  to  demand  from  the  Government  or  its  individual  members 
written  reports  on  any  matter  in  their  jurisdiction. 

Art.  83.  The  President  of  the  Republic  shall  have  the  right 
to  call  the  Government  or  its  members  to  conference. 

Art.  84.    Every  Government  decree  shall  be  signed  by  the 


328       NEW  CONSTITUTIONS  OF  EUROPE 

Prime  Minister  or  his  deputy  and  the  Minister  invested  with 
its  execution.  It  must  be  signed  by  at  least  hah*  of  the  members 
of  the  Government. 


Ministries  and  Subordinate  Administrative  Offices 

Art.  85.  The  competence  of  Ministries  shall  be  determined 
by  law. 

Art.  86.  In  subordinate  administrative  offices  the  citizens 
must  so  far  as  possible  be  represented,  and  the  widest  protec- 
tion of  the  rights  and  interests  of  the  citizens  shall  be  assured. 

Art.  87.  (1)  No  one  may  hold  at  the  same  time  an  elective 
subordinate  office  and  an  office  which  has  jurisdiction  over  the 
former. 

(2)  Exceptions  to  this  rule  shall  be  determined  by  law. 

Art.  88.  (1)  A  court  composed  of  independent  judges, 
having  jurisdiction  throughout  the  Republic,  shall  hear  final 
appeals  for  protection  against  administrative  rulings. 

(2)  Details  shall  be  determined  by  law. 

Art.  89.  The  lower  offices  of  state  administration  shall  be 
defined  in  principle  by  law,  the  detail  execution  of  which  may 
be  regulated  by  decrees  in  council. 

Art.  90.  State  offices  charged  with  financial  functions  but 
without  executive  power  shall  be  established  and  organized  by 
Government  decrees. 

Art.  91.  The  constitution  and  competence  of  local  autono- 
mous governing  bodies  shall  be  determined  by  special  laws. 

Art.  92.  Special  laws  shall  provide  for  the  guarantee  by  the 
state  against  damages  caused  by  unlawful  execution  of  public 
offices. 

Art.  93.  State  officials  in  their  official  functions  shall  abide 
by  the  constitution  and  other  laws.  The  same  shall  apply 
to  non-official  members  of  administrative  bodies. 

SECTION  IV 
JUDICIAL  POWERS 

Art.  94.  (1)  The  law  shall  be  administered  by  public  law 
courts  whose  organization,  jurisdiction,  and  procedure  shall  be 
regulated  by  law. 

(2)  No  one  shall  be  tried  other  than  before  his  legal  judge. 

(3)  Only  in  cases  of  criminal  procedure,  may  courts  be  estab- 


CZECHOSLOVAKIA  329 

lished  for  a  limited  period  in  cases  specified  in  advance  by 
law. 

Art.  95.  (1)  Jurisdiction  in  civil  matters  shall  be  reserved 
to  civil  courts,  either  ordinary  or  extraordinary,  and  courts 
of  arbitration;  jurisdiction  in  criminal  matters  shall  be  reserved 
to  public  criminal  courts,  so  far  as  it  shall  be  not  reserved  by 
special  law  for  courts  martial  or  so  far  as  these  matters  cannot 
be  dealt  with  according  to  general  regulations  in  police  or  finan- 
cial prosecutions. 

(2)  A  single  Supreme  Court  of  Justice  shall  be  established 
for  the  whole  Czechoslovak  Republic. 

(3)  The  competence  and  functions  of  juries  shall  be  deter- 
mined by  special  laws. 

(4)  Trial  by  jury  may  be  temporarily  suspended  in  cases  pro- 
vided for  by  law. 

(5)  The  jurisdiction  of  courts  martial  may  be  extended  to 
the  civil  population  according  to  legal  regulations  in  times  of 
war  only  and  for  acts  committed  at  such  times  only. 

Art.  96.  (1)  Judicial  power  in  all  courts  shall  be  separated 
from  administrative  power. 

(2)  Solution  of  disputes  as  to  competence  between  courts 
and  administrative  authorities  shall  be  determined  by  law. 

Art.  97.  (1)  Conditions  as  to  the  qualification  of  judges 
shall  be  determined  by  law. 

(2)  The  conditions  of  service  of  the  judges  shall  be  determined 
by  law. 

Art.  98.  (1)  All  judges  shall  be  independent  in  the  exercise 
of  their  conscience  and  they  shall  be  bound  only  by  law. 

(2)  When  taking  the  oath  of  office  judges  shall  pledge  them- 
selves to  abide  by  the  law. 

Art.  99.  (1)  Judges  shall  be  appointed  permanently;  they 
may  be  transferred,  dismissed,  or  pensioned  against  their  will, 
only  if  a  new  juridical  organization  be  set  up  for  a  time  specified 
by  law,  or  on  the  grounds  of  lawful  disciplinary  proceedings; 
they  may  be  also  pensioned  after  a  valid  finding  when  they  have 
attained  the  age  stated  by  law.  Details  shall  be  determined 
by  a  special  law  which  shall  also  define  the  conditions  under 
which  judges  may  be  suspended. 

(2)  Senates  at  law  courts  of  the  first  and  second  instance  shall 
be  permanent  for  one  year  except  where  specified  by  law. 

Art.  100.  Judges  shall  not  perform  other  paid  functions  per- 
manent or  temporary,  except  where  permitted  by  law. 


330       NEW  CONSTITUTIONS  OF  EUROPE 

Art.  101.  (1)  Verdicts  shall  be  given  in  the  name  of  the 
Republic. 

(2)  Proceedings  before  law  courts  shall  be  verbal  and  public. 
Verdicts  in  criminal  matters  shall  always  be  proclaimed  in  pub- 
lic.    The  public  may  be  excluded  during  the  proceedings  only 
under  circumstances  defined  by  law. 

(3)  In  criminal  proceedings  the  principle  of  prosecution  shall 
be  adopted. 

Art.  102.  The  judges  shall  have  the  right,  in  determining  a 
point  of  law,  to  inquire  into  the  validity  of  a  governmental  de- 
cree; in  the  case  of  a  law  they  can  inquire  only  as  to  whether  it 
was  properly  promulgated  (Article  51). 

Art,  103.  (1)  The  President  of  the  Republic  shall  have  the 
right  to  grant  an  amnesty  or  pardons,  to  mitigate  a  sentence 
and  the  legal  consequences  of  verdicts  of  criminal  courts,  espe- 
cially the  loss  of  the  suffrage  right  to  the  National  Assembly  and 
other  representative  bodies;  he  shall  also  have  the  right  to  order 
the  abolition  or  the  suspension  of  criminal  legal  proceedings  with 
the  exception  of  proceedings  in  which  the  action  is  brought 
by  private  individuals. 

(2)  These  rights  shall  not  be  exercised  by  the  President  in 
the  case  of  members  of  the  Government  accused  or  sentenced 
according  to  Article  79. 

Art.  104.  A  special  law  shall  define  the  responsibility  of  the 
state  and  judges  for  any  damages  caused  by  the  latter's  breach 
of  right  in  performing  their  duties. 

Art.  105.  (1)  In  cases  of  private  property  claims,  coming  for 
adjudication  before  an  administrative  authority,  in  which  the 
plaintiff  is  dissatisfied  with  the  decision  of  the  latter,  he  may, 
after  exhausting  corrective  efforts,  appeal  to  the  courts. 

(2)  Details  shall  be  determined  by  law. 


SECTION  v 

RIGHTS,  LIBERTIES,  AND  DUTIES  OF  THE  CITIZEN 
Equality 

Art.  106.  (1)  Privileges  due  to  sex,  birth,  or  occupation 
shall  not  be  recognized. 

(2)  All  persons  residing  in  the  Czechoslovak  Republic  shall 
enjoy  within  its  territory  in  equal  measure  with  the  citizens  of 


CZECHOSLOVAKIA  331 

this  Republic  complete  and  absolute  security  of  life  and  liberty 
without  regard  to  origin,  nationality,  language,  race,  or  religion. 
Exceptions  to  this  principle  may  be  made  only  so  far  as  is  com- 
patible with  international  law. 

(3)  Only  such  titles  may  be  conferred  as  designate  official 
rank  or  a  profession.  This  enactment  in  no  way  affects  aca- 
demic honors. 


Personal  Freedom  and  Freedom  of  Property 

Art.  107.  (1)  Personal  freedom  shall  be  guaranteed.  De- 
tails shall  be  laid  down  by  an  enactment  which  shall  form  part 
of  this  constitutional  charter. 

(2)  No  person  shall  be  deprived  of  personal  liberty  or  re- 
stricted in  the  enjoyment  of  the  same  except  upon  legal  grounds. 
Public  authorities  can  demand  personal  services  from  a  citizen 
only  on  legal  grounds. 

Art.  108.  (1)  Every  citizen  of  the  Czechoslovak  state  may 
take  up  his  abode  wheresoever  he  will  in  the  Czechoslovak 
Republic,  may  acquire  there  real  property  and  carry  on  any 
calling  for  the  purpose  of  earning  profits  within  the  limits  of 
the  law. 

(2)  This  right  shall  suffer  restriction  only  in  the  public  in- 
terests and  on  the  basis  of  law. 

Art.  109.  (1)  Private  ownership  may  be  restricted  only  by 
law. 

(2)  Expropriation  is  possible  only  on  the  basis  of  law.  Com- 
pensation shall  be  given  in  all  cases  unless  it  is  or  shall  be  pro- 
vided by  law  that  no  compensation  be  given. 

Art.  110.  The  right  to  emigrate  abroad  may  be  restricted 
only  by  law. 

Art.  111.  (1)  Taxation  and  public  levies  generally  may  be 
imposed  only  by  law. 

(2)  Likewise  only  by  law  may  fines  and  punishments  be  pre- 
scribed and  imposed. 


Domestic  Liberty 

Art.  112.     (1)  Domestic  rights  are  inviolable. 
(2)  Details  shall  be  laid  down  by  a  law  which  shall  form  part 
of  this  constitutional  charter. 


332       NEW  CONSTITUTIONS  OF  EUROPE 

Freedom  of  the  Press,  the  Right  of  Free 
Assembly  and  Association 

Art.  113.  (1)  Freedom  of  the  press  as  well  as  the  right  to 
assemble  peaceably  and  without  arms  and  to  form  associations 
is  guaranteed.  It  is  therefore  in  principle  inadmissible  to  place 
the  press  under  preliminary1  censorship.  The  manner  in  which 
the  right  of  forming  associations  and  the  right  of  free  assembly 
shall  be  exercised  shall  be  determined  by  law. 

(2)  An   association   may   be  dissolved  only  when  its  con- 
duct violates  the  law  of  the  land  or  disturbs  public  peace  and 
order. 

(3)  Restrictions  may  be  imposed  by  law  especially  in  cases 
of  assembly  in  places  which  serve  as  public  thoroughfares,  in 
cases  of  the  establishment  of  associations  for  the  purpose  of 
profit,  and  in  cases  of  the  participation  of  foreigners  in  political 
associations.     The  law  shall  also  state  what  restrictions  shall 
be  placed  on  the  principles  of  the  foregoing  paragraphs  in  time 
of  war  or  in  case  of  events  taking  place  within  the  state  which 
seriously  threaten  the  republican  form  of  government,  the  con- 
stitution, or  public  peace  and  order. 

Art.  114.  (1)  The  right  of  association  to  safeguard  and  ame- 
liorate conditions  of  employment  and  economic  conditions  shall 
be  guaranteed. 

(2)  All  acts  of  individuals  or  societies  which  constitute  an 
intentional  violation  of  this  right,  are  prohibited. 


The  Right  of  Petition 

Art.  115.  The  right  to  petition  shall  be  enjoyed  by  every 
person.  Legal  persons  and  corporations  shall  enjoy  this  right 
only  within  the  bounds  of  their  competence. 


Postal  Inviolability 

Art.  116.     (1)  Inviolability  of  matter  entrusted  to  the  mail 
is  guaranteed. 

(2)  Details  shall  be  determined  by  enactment. 

1Under  the  Austrian  regime  publications  were  submitted  to  the  censor  before 
being  issued. 


CZECHOSLOVAKIA  333 

Liberty  of  Instruction  and  of  Conscience; 
Liberty  of  Expressing  Opinion 

Art.  117.  (1)  Every  person  may  within  the  limits  of  the 
law  express  his  or  her  opinion  by  word,  in  writing,  in  print,  by 
picture,  etc. 

(2)  The  same  applies  to  legal  persons  within  the  limits  of 
their  competence. 

(3)  No  one  shall  suffer  in  the  sphere  of  his  work  or  employ- 
ment for  exercising  this  right. 

Art.  118.  Scientific  research  and  the  publication  of  its  re- 
sults, as  well  as  art,  are  free  so  far  as  they  do  not  violate  the 
penal  code. 

Art.  119.  Public  instruction  shall  be  given  so  as  not  to  be 
in  conflict  with  the  results  of  scientific  investigation. 

Art.  120.  (1)  Private  establishments  for  instruction  and 
education  are  permitted  to  be  set  up  only  within  the  limits  of 
the  law. 

(2)  The  supreme  authority  and  control  over  all  instruction 
and  education  shall  be  in  the  hands  of  the  state. 

Art.  121.  Liberty  of  conscience  and  religious  creed  is  guaran- 
teed. 

Art.  122.  All  inhabitants  of  the  Czechoslovak  Republic 
enjoy  in  the  same  degree  as  the  citizens  of  the  Republic,  the 
right  to  profess  and  exercise  publicly  and  privately  any  creed, 
religion,  or  faith  whatsoever,  so  far  as  the  exercise  of  the 
same  is  not  in  conflict  with  public  law  and  order  or  with  mo- 
rality. 

Art.  123.  No  one  shall  be  compelled  either  directly  or  indi- 
rectly to  take  part  in  any  religious  rite  or  ceremony  whatsoever, 
rights  pertaining  to  paternal  or  guardian  authority  being  never- 
theless respected. 

Art.  124.  All  religious  confessions  shall  be  equal  before  the 
law. 

Art.  125.  The  performance  of  specific  religious  rites  may  be 
prohibited  if  they  are  in  conflict  with  public  order  or  public 
morals. 

Marriage  and  Family 

Art.  126.  Wedlock,  family,  and  motherhood  shall  be  under 
the  special  protection  of  the  law. 


334       NEW  CONSTITUTIONS  OF  EUROPE 

Military  Service 

Art.  127.  (1)  Every  able-bodied  citizen  of  the  Czechoslovak 
Republic  shall  undergo  military  training  and  shall  obey  the 
summons  when  called  upon  for  the  defence  of  the  state. 

(2)  Details  shall  be  settled  by  enactment. 

SECTION  VI 
PROTECTION  OF  NATIONAL,  RELIGIOUS,  AND  RACIAL  MINORITIES 

Art.  128.  (1)  All  citizens  of  the  Czechoslovak  Republic  shall 
be  in  all  respects  equal  before  the  law  and  shall  enjoy  equal  civic 
and  political  rights  whatever  be  their  race,  their  language,  or 
their  religion. 

(2)  Difference  in  religion,  belief,  confession,  or  language  shall 
within  the  limits  of  the  common  law  constitute  no  obstacle  to 
any  citizen  of  the  Czechoslovak  Republic  particularly  in  regard 
of  entry  into  the  public  services  and  offices,  of  attainment  to 
any  promotion  or  dignity,  or  in  regard  to  the  exercise  of  any 
trade  or  calling. 

(3)  Citizens  of  the  Czechoslovak  Republic  may,  within  the 
limits  of  the  common  law,  freely  use  any  language  they  choose 
in  private  and  business  intercourse,  in  all  matters  pertaining  to 
religion,  in  the  press  and  in  all  publications  whatsoever,  or  in 
public  assemblies. 

(4)  This,  however,  does  not  affect  the  rights  conferred  on  the 
state  organs  in  these  matters  by  laws  already  in  force  or  to  be 
passed  in  the  future  with  a  view  to  public  order,  the  security 
of  the  state,  or  effective  control. 

Art.  129.  The  principles  on  which  the  rights  as  to  language 
in  the  Czechoslovak  Republic  are  based  shall  be  determined  by 
a  special  enactment  which  shall  form  part  of  this  constitutional 
charter. 

Art.  130.  In  so  far  as  citizens  of  the  Czechoslovak  Republic 
are  entitled  by  the  common  law  to  establish,  manage,  and  ad- 
minister at  their  own  cost  philanthropic,  religious,  or  social 
institutions,  they  are  all  equal,  no  matter  what  be  their  national- 
ity, language,  religion,  or  race,  and  may,  in  such  institutions, 
make  use  of  their  own  language  and  worship  according  to  their 
own  religious  ceremonies. 

Art.  131.  In  towns  and  districts  in  which  there  lives  a  con- 
siderable fraction  of  Czechoslovak  citizens  speaking  a  language 


CZECHOSLOVAKIA  335 

other  than  Czechoslovak,  the  children  of  such  Czechoslovak 
citizens  shall,  in  public  instruction  and  within  the  bounds  of 
the  general  regulations  relating  thereto,  be  guaranteed  a  due 
opportunity  to  receive  instruction  in  their  own  tongue.  The 
Czechoslovak  language  may  at  the  same  time  be  prescribed  as  a 
compulsory  subject  of  instruction. 

Art.  132.  In  towns  and  districts  where  there  is  living  a  con- 
siderable fraction  of  Czechoslovak  citizens  belonging  to  some 
minority,  whether  in  respect  of  religion,  or  nationality,  or  lan- 
guage, and  where  specific  sums  of  money  from  public  funds  as 
set  out  in  the  state  budget  or  in  the  budget  of  local  or  other 
public  authorities,  are  to  be  devoted  to  education,  religion,  or  phi- 
lanthropy, a  due  share  in  the  use  and  enjoyment  of  such  sums 
shall  be  secured  to  such  minorities  within  the  limits  of  the 
general  regulations  for  public  administration. 

Art.  133.  The  method  of  carrying  out  the  principles  em- 
bodied in  Articles  131  and  132,  and  especially  the  interpretation 
to  be  assigned  to  the  expression  "considerable  fraction,"  shall 
be  determined  by  special  enactment. 

Art.  134.  Every  manner  whatsoever  of  forcible  denational- 
ization is  prohibited.     Non-observance  of  this  principle  may  be 
proclaimed  by  law  to  be  a  punishable  act. 
Follow  the  Signatures: 
T.  G.  MASARYK       TUSAR       STANEK       HOTJDEK 


THE  LAW  OF  FEBRUARY  29,  1920 

IN  PURSUANCE  OF  ARTICLE  129  OF  THE  CONSTITUTIONAL  CHARTER 

ESTABLISHING    THE    PRINCIPLES    OF   LANGUAGE    RIGHTS 

WITHIN   THE   CZECHOSLOVAK  REPUBLIC 

Article  1.  The  Czechoslovak  language  shall  be  the  state, 
official  language  of  the  Republic  (Article  7  of  the  Treaty  made 
between  the  leading  Allied  and  Associated  Powers  and  the 
Czechoslovak  Republic  and  signed  at  St.  Germain-en-Laye  on 
September  10,  1919). 

It  is  thus  in  particular  the  language : 

(1)  In  which  the  work  of  all  the  courts,  offices,  institutions, 
undertakings,  and  organs  of  the  Republic  shall  be  conducted, 
in  which  they  shall  issue  their  proclamations  and  notices  as 
well  as  their  inscriptions  and  designations.  (Exceptions  to 


336       NEW  CONSTITUTIONS  OF -EUROPE 

this  section  are  laid  down  in  Article  2  and  Article  5  as  well  as 
in  Article  6  relating  to  Russinia.) 

(2)  In  which  the  principal  text  on  state  and  other  banknotes 
shall  be  printed. 

(3)  Which  the  armed  forces  of  the  country  shall  use  for  the 
purpose  of  command  and  as  the  language  of  the  service;  in  deal- 
ings with  men  and  companies  not  knowing  this  language  their 
mother  tongue  may  also  be  used. 

Detailed  regulations  will  be  issued  as  to  the  duty  of  state 
officials  and  employees,  as  well  as  of  officials  and  employees 
of  state  institutions  and  undertakings,  to  know  the  Czechoslovak 
language. 

Art.  2.  In  respect  of  national  and  language  minorities  (Chap- 
ter I,  Treaty  of  St.  Germain)  the  following  rules  shall  apply : 

It  shall  be  the  duty  of  courts,  offices,  and  organs,  of  the  Re- 
public whose  competence  relates  to  a  jurisdictional  district  in 
which  according  to  the  latest  census  at  least  20  per  cent,  of  the 
citizens  speak  the  same  language — and  that  a  language  other 
than  Czechoslovak — to  accept  (in  all  matters  which  they  have 
to  settle  on  the  ground  of  their  competence  applying  to  such  a 
district)  from  any  member  of  this  minority  any  complaints  in 
this  language  and  to  deal  with  complaints  not  only  in  the 
Czechoslovak  language  but  also  in  that  in  which  the  complaint 
itself  is  presented.  Where  there  are  several  district  courts  in 
one  community,  that  whole  community  shall  be  deemed  to  be 
a  single  jurisdictional  district. 

It  shall  be  laid  down  by  regulation  to  what  extent  and  for 
what  courts  and  offices  it  will  be  possible  to  restrict  the  settle- 
ment of  cases  to  the  language  of  the  parties  themselves.  These 
courts  and  offices  are  those  whose  competence  is  limited  to  one 
district,  namely  a  district  with  such  a  national  minority,  as 
well  as  courts  and  offices  immediately  subordinate  to  them. 

Under  similar  conditions,  it  is  the  duty  of  the  public  prosecu- 
tor to  frame  the  charges  against  an  accused  speaking  another 
tongue  in  this  language,  too,  or  even  in  this  language  alone. 

The  executive  authority  shall  determine  in  such  cases  what 
language  shall  be  used. 

If  the  party  to  any  matter  is  not  the  initiator  of  the  proceed- 
ings, he  shall  (if  the  other  conditions  of  Article  2  are  fulfilled) 
be  entitled  on  the  same  principles  to  have  his  case  dealt  with 
also  in  his  own  language,  or  even  in  it  alone  so  far  as  it  is  known, 
or  otherwise  at  his  request. 


CZECHOSLOVAKIA  337 

In  districts  where  there  lives  a  national  minority  in  the  terms 
of  Article  2,  the  language  of  the  national  minority  shall  be  used 
concurrently  with  the  Czechoslovak  language  in  proclamations 
and  notices  issued  by  the  state  courts,  offices,  and  organs  and 
for  their  inscriptions  and  designations. 

Art.  3.  It  is  the  duty  of  autonomous  offices,  representative 
councils,  and  all  public  corporations  in  the  state  whatsoever  to 
accept  and  to  deal  with  oral  or  written  matter  in  the  Czecho- 
slovak language. 

It  shall  always  be  possible  to  make  use  of  this  language  in 
meetings  and  conferences;  proposals  and  suggestions  put  for- 
ward in  this  language  must  be  dealt  with. 

The  state  executive  authority  shall  determine  upon  the  lan- 
guage to  be  used  for  public  proclamations  and  notices  and 
for  the  inscriptions  and  designations  for  which  the  autonomic 
offices  are  responsible. 

It  is  the  duty  of  the  autonomous  offices,  representative 
councils,  and  public  corporations  to  accept — under  the  con- 
ditions of  Article  2 — all  matters  presented  to  them  in  a  lan- 
guage other  than  Czechoslovak,  and  to  deal  with  the  same,  and 
also  to  permit  the  use  of  another  language  in  meetings  and  con- 
ferences. 

Art.  4.  The  state  offices,  using  the  state  official  language, 
shall,  in  their  official  proceedings  in  those  parts  of  the  Republic 
which  before  October  28,  1918,  pertained  to  the  Kingdoms  and 
Lands  represented  in  the  Imperial  (Austro-Hungarian)  Coun- 
cil or  to  the  Kingdom  of  Prussia,  use  regularly  the  Czech  lan- 
guage, in  Slovakia  regularly  the  Slovak  language. 

Matters  presented  in  the  Czech  language  and  officially  dealt 
with  in  Slovak  or  presented  in  Slovak  and  dealt  with  in  Czech 
shall  be  deemed  to  have  been  dealt  with  in  the  language  in  which 
they  were  presented. 

Art.  5.  The  instruction  in  all  schools  established  for  mem- 
bers of  a  national  minority  shall  be  given  in  their  language. 
Likewise  educational  and  cultural  institutions  set  up  for  them 
shall  be  administered  in  their  language.  (Article  9,  Treaty 
of  St.  Germain.) 

Art.  6.  The  Diet  which  shall  be  set  up  for  Russinia  shall  have 
the  right  reserved  to  it  for  settling  the  language  question  for 
this  territory  in  a  manner  consonant  with  the  unity  of  the 
Czechoslovak  State.  (Article  10,  Treaty  of  St.  Germain.) 

Until  this  settlement  has  been  made  this  law  shall  apply, 


338       NEW  CONSTITUTIONS  OF  EUROPE 

due  regard,  however,  being  paid  to  the  special  circumstances 
of  that  territory  in  respect  of  language. 

Art.  7.  Disputes  regarding  the  use  of  a  language  in  the 
courts,  offices,  institutions,  undertakings,  and  organs  of  the  state, 
as  well  as  in  the  autonomous  offices  and  public  corporations,  shall 
be  settled  by  the  competent  organs  of  state  control  as  matters 
of  state  administration  detached  from  the  causes  out  of  which 
they  arose. 

Art.  8.  Details  as  to  the  carrying  out  of  this  law  shall  be 
fixed  by  the  state  executive  authority  which  will,  in  the  spirit 
of  this  law,  lay  down  rules  regulating  the  use  of  languages 
for  autonomous  offices,  representative  bodies,  and  public  cor- 
porations, as  well  as  for  those  offices  and  public  organs  whose 
competence  extends  to  districts  which  are  less  than  juris- 
dictional  districts,  or  for  organs  which  have  no  district  of  their 
own. 

The  rules  shall  also  prescribe  what  measures  shall  be  taken 
towards  facilitating  the  dealings  of  officials  with  persons  who  do 
not  speak  the  language  in  which  the  court,  office,  or  organ  con- 
ducts its  business  in  the  sense  of  this  law.  They  shall  also 
prescribe  the  measures  to  be  taken  to  protect  the  different  par- 
ties from  legal  damage  which  might  accrue  to  them  from  igno- 
rance of  the  language  in  question. 

Exceptions  to  the  terms  of  this  act  necessary  for  securing  un- 
disturbed administration  may  also  be  made  by  regulation  for 
the  period  of  five  years  commencing  from  the  day  on  which  this 
law  comes  into  force. 

Finally,  rules  shall  be  laid  down  which  are  essential  for  securing 
the  successful  carrying  out  of  this  law. 

Art.  9.  This  law  shall  come  into  force  on  the  day  on  which 
it  is  promulgated.  It  abrogates  all  rules  relating  to  language 
which  were  in  force  previous  to  October  28,  1918. 

All  the  Ministers  are  entrusted  with  the  execution  of  this  law. 

T.  G.  MASARYK,  PRASEK, 

TUSAR,  VESELY, 

STANEK,  KLOFAC, 

HOUDEK,  HEIDLER, 

BENES,  WINTER, 

SONNTAG,  FRANKE, 

HABRMAN,  HAMPL. 


CZECHOSLOVAKIA  339 


THE  LAW  OF  FEBRUARY  29,  1920 

SETTING    FORTH    THE    CONSTITUTION   AND   JURISDICTION 
OF  THE  SENATE 

SECTION  I 
THE  CONSTITUTION  OF  THE  SENATE 

Article  1.  The  Senate  of  the  Czechoslovak  Republic  shall 
consist  of  150  elected  members.  No  one  may  be  at  the  same 
time  a  member  of  the  Chamber  of  Deputies  and  of  the  Senate. 

If  the  elections  to  the  one  chamber  follow  within  four  weeks 
at  the  latest  after  the  elections  to  the  other,  no  one  may  stand 
as  candidate  for  both  chambers.  The  election  of  a  candidate 
in  defiance  of  this  enactment  is  invalid. 

Any  one  who,  hi  any  other  case  than  that  just  referred  to,  be- 
ing a  member  of  the  Chamber  of  Deputies,  is  elected  Senator, 
or  vice  versa,  being  a  member  of  the  Senate  is  elected  to  the 
Chamber  of  Deputies,  shall  take  his  seat  in  that  chamber  to 
which  he  has  been  last  elected. 

Art.  2.  The  rules  of  franchise  laid  down  for  elections  to  the 
Chamber  of  Deputies  shall  be  applicable  to  elections  for  the 
Senate  except  in  such  cases  as  this  law  otherwise  provides. 

Art.  3.  All  citizens  who  have  the  right  to  vote  at  elections 
to  the  Chamber  of  Deputies  are  entitled  to  vote  at  elections  to 
the  Senate  if  they  have  attained  on  the  day  of  the  publication 
of  the  standing  lists  of  voters  (Law  of  December  19,  1919, 
No.  663,  Code  of  Laws  and  Regulations)  the  age  of  26  years. 

Art.  4.  Citizens  of  the  Czechoslovak  Republic  without  re- 
gard to  sex  may  be  elected  to  the  Senate  if,  on  the  day  of  elec- 
tion, they  have  attained  the  age  of  45  years,  have  been  for  at 
least  ten  years  citizens  of  the  Czechoslovak  Republic,  and  are 
not  excluded  from  the  franchise.  For  elections  which  shall  take 
place  up  to  the  end  of  the  year  1928,  this  condition  of  ten  years' 
citizenship  shall  not  be  required. 

Art.  5.  The  Senate  shall  be  elected  for  a  period  of  eight 
years. 

Art.  6.  If  the  elections  to  the  Senate  take  place  within  four 
weeks  at  the  latest  of  the  day  on  which  the  elections  to  the 
Chamber  of  Deputies  took  place,  the  polling  committees  of  the 
constituencies  and  the  central  polling  committee  which  were  in 


340       NEW  CONSTITUTIONS  OF  EUROPE 

charge  of  the  elections  of  the  Chamber  of  Deputies  shall  also 
take  charge  of  the  elections  to  the  Senate. 

Representatives  of  parties  who  have  not  put  forward  valid 
lists  of  candidates  for  the  Senate  may  not  be  members  of  these 
committees ;  on  the  contrary  these  committees  shall  be  composed 
of  representatives  of  those  parties  which  put  forward  no  candi- 
dates for  the  Chamber  of  Deputies  but  presented  valid  lists  of 
candidates  for  the  Senate.  Article  9  and  Article  11  of  the  rules 
of  franchise  for  the  Chamber  of  Deputies  are  to  be  applied  in 
this  matter. 

Except  in  the  case  stated  in  Paragraph  1,  the  polling  commit- 
tees of  the  constituencies  and  the  central  polling  committee 
must  be  constituted  anew. 

Art.  7.  In  every  constituency  which  elects  members  to  the 
Senate  a  district  polling  committee  shall  be  set  up.  The  rules 
of  franchise  for  elections  to  the  Chamber  of  Deputies  relating 
to  district  polling  committees  apply  by  analogy  thereto. 

A  district  polling  committee  for  elections  to  the  Senate  has 
the  same  competence  in  the  matter  of  elections  to  the  Senate 
as  a  district  polling  committee,  set  up  in  pursuance  of  Article 
10  of  the  rules  of  franchise  for  election  to  the  Chamber  of 
Deputies,  has  in  respect  of  elections  to  the  Chamber  of  Deputies. 

Art.  8.  In  the  case  stated  in  Article  6,  Paragraph  1,  citizens 
who  are  not  entitled  to  vote  at  the  elections  to  the  Senate  may 
be  members  of  a  committee  which  has  charge  of  elections  to  the 
Senate. 

Art.  9.  The  constituencies  electing  Senators  shall  be  com- 
posed of  constituencies  which  elect  members  to  the  Chamber 
of  Deputies. 

(Here  follows  an  enumeration  of  the  electoral  districts.  There 
are  in  all  13  senatorial  constituencies  electing  respectively  23, 
11,  15,  14,  15,  17,  16,  10,  7,  5,  9,  4,  and  4  Senators.) 

Art.  10.  If  the  Senate  be  dissolved  by  the  President  of  the 
Republic  or  if  the  term  for  which  it  was  elected  expire,  the  Min- 
ister of  the  Interior  shall  cause  new  elections  to  take  place 
within  sixty  days. 

Art.  11.  The  Minister  of  the  Interior  shall  issue  to  an  elected 
Senator  a  letter  of  credence  which  shall  entitle  him  to  enter  the 
Senate  and  to  take  part  in  its  proceedings.  This  right  shall 
lapse  should  the  election  of  such  a  Senator  be  declared  invalid 
by  the  electoral  court. 

Art.  12.     At  its  first  assembly  which  shall  be  opened  by  the 


CZECHOSLOVAKIA  341 

Prime  Minister  and  presided  over  by  the  senior  Senator,  the 
Senate  shall  elect  from  among  its  own  members  a  Chairman  and 
two  Deputy  Chairmen. 

The  proceedings  of  the  Senate  shall  be  regulated  within  the 
limits  of  the  law  relating  to  rules  of  procedure,  by  rules  of  pro- 
cedure determined  upon  by  the  Senate  itself.  Until  such  rules 
shall  be  determined  upon,  the  rules  of  procedure  passed  by  the 
hitherto  existing  National  Assembly  shall  remain  in  force. 

Art.  13.  At  the  first  assembly  of  the  Senate  and  previous 
to  the  elections  of  Chairman  and  Deputy  Chairmen,  the  Senators 
shall  take  the  oath  in  the  presence  of  the  Prime  Minister  as 
provided  by  Article  22  of  the  constitutional  charter.  Refusal 
to  take  the  oath  or  the  taking  of  it  with  reservation  shall  entail 
the  immediate  loss  by  the  member  of  his  seat(  Article  22  of  the 
constitutional  charter). 

The  same  applies  to  Senators  who  subsequently  enter  the 
Senate;  they  take  the  oath  in  the  presence  of  the  Chairman  of 
the  Senate. 

Art.  14.  Senators  are  entitled  to  such  remuneration  as  shall 
be  fixed  by  law. 

THE  JURISDICTION  OF  THE  SENATE 

Art.  15.  The  Senate  shall  cooperate  in  the  exercise  of  legisla- 
tive authority  as  laid  down  by  the  constitutional  charter. 

Art.  16.  The  Senate  is  entitled  to  pass  judgment  where  an 
accusation  is  brought  by  the  Chamber  of  Deputies: 

(1)  Against  the  President  of  the  Republic  for  high  treason 
(Article  67  of  the  constitutional  charter) ; 

(2)  Against  members  of  the  Government  for  violation  of 
constitutional  or  other  laws  (Article  79  of  the  constitutional 
charter). 

SECTION   II 

The  first  elections  to  the  Senate  of  the  Czechoslovak  Republic 
shall  take  place  to  the  exclusion  of  the  12th  and  13th  constit- 
uencies as  well  as  to  the  exclusion  of  the  district  of  Hlucin  from 
the  7th  constituency,  the  district  of  Vitoraz  from  the  5th  con- 
stituency, the  district  of  Valcice  from  the  6th,  and  to  the  ex- 
clusion of  the  territories  of  Spis  and  Orava  which  are  the  subject 
of  a  plebiscite. 

The  second  and  third  scrutinies  [under  the  scheme  of  pro- 


842       NEW  CONSTITUTIONS  OF  EUROPE 

portional  representation]  shall  take  place  for  the  other  elections 
without  regard  to  elections  in  these  last  mentioned  districts. 

The  territories  excluded  from  the  first  elections  shall,  for  the 
first  period  for  which  the  Senate  is  elected,  elect  their  Senators 
later  in  a  manner  which  will  be  fixed  by  regulation. 

The  Government  shall  take  steps  to  secure  for  legionaries  the 
exercise  of  their  franchise  rights  and  shall  assign  to  them  seats 
which  may  happen  to  be  superfluous  in  some  of  the  electoral 
districts. 

SECTION  m 

This  law  shall  come  into  force  simultaneously  with  the  law 
which  served  as  the  introduction  to  the  constitutional  charter. 

The  execution  of  it  shall  be  entrusted  to  the  Minister  of  the 
Interior. 

T.  G.  MASARYK  TUSAR  STANEK 


CHAPTER  XIV 
JUGOSLAVIA 

1.  HISTORICAL  NOTE 

ONE  of  the  most  important  and  complex  problems  of 
nationality  confronting  the  Peace  Conference  was  that 
of  the  Jugoslavs  or  South  Slav  peoples.  They  reached 
their  present  seats  during  the  great  migration  period  of 
the  sixth  and  seventh  centuries,  A.  D.,  and  the  main  body 
of  them  never  split  up  irremediably.1  In  1914  these 
Jugoslavs  were  divided  among  four  separate  kingdoms — 
Montenegro,  Serbia,  Hungary,  and  Austria.  In  Austria- 
Hungary  itself  the  Jugoslavs  lived  under  five  distinct  admin- 
istrations. Bosnia-Herzegovina  was  under  joint  Austro- 
Hungarian  administration;  Slovenia,  Istria,  and  Dalmatia 
were  controlled  directly  by  Austria;  the  Kingdom  of  Cro- 
atia, including  both  Serbs  and  Croats,  was  subject  to 
Hungary;  Fiume  was  a  separate  district  under  Hungary; 
while  the  Serbs  of  South  Hungary  were  under  direct 
Hungarian  control.2 

The  problem  of  the  Jugoslavs  was  acute  before  the  be- 
ginning of  the  war.  A  thoroughgoing  solution  would  have 
necessitated  the  break-up  of  the  Austro-Hungarian  king- 
dom, or  at  least  concessions  by  it  of  a  high  degree  of 
national  autonomy.  Since  these  contingencies  seemed 


^or  brief  histories  of  the  southern  Slavs  and  accounts  of  the  development  of 
the  problem  that  existed  upon  the  outbreak  of  the  war,  see  Arnold  Toynbee, 
Nationality  and  the  War,  pp.  167-216  (London,  1915)  and  Stoddard  and  Frank, 
The  Stakes  of  the  War,  Chapter  XI  (New  York,  1918). 

Temperley,  Ed.,  A  History  of  the  Peace  Conference  of  Paris,  Vol.  IV,  p.  171 
ff.  (London,  1921).  This  chapter,  "The  Liberation  of  the  New  Nationalities." 
has  been  largely  relied  upon  in  the  preparation  of  this  introductory  note. 

343 


The 

Jugoslavs 
in  1914 


Proposed 
solutions  of 
Jugoslav 
problem 


1.  Repres- 
sion 


2.  Trialism 


3.  Greater 
Serbia 


344       NEW  CONSTITUTIONS  OF  EUROPE 

outside  of  the  realm  of  practical  politics,  attention  was  de- 
voted to  three  more  limited  proposals  all  of  which  were 
unsatisfactory.  They  would  have  done  little  to  meet 
the  demands  which  came  from  the  growing  and  menacing 
sense  of  national  solidarity  among  the  Serbs,  Croats, 
and  Slovenes. 

The  first  proposed  solution  was  Repression.  It  was 
believed  in  Austria-Hungary  that  the  unrest  among  the 
Jugoslavs  was  largely  fomented  in  Belgrade;  but  the 
apparently  simple  policy  of  treating  manifestations  of 
nationalism  as  treason  and  of  using  the  sword  against 
Serbia  involved  serious  difficulties.  Russia  would  natu- 
rally object  to  any  harsh  dealing  with  Serbia,  and  there 
would  unquestionably  be  an  increase  of  Jugoslav  opposi- 
tion within  the  Monarchy  itself  if  this  policy  was 
attempted.  The  militarist  party  under  Conrad  von  Hoetz- 
endorff  had  long  advocated  this  policy.  His  last  memo- 
randum urging  it  was  dated  June  21, 1914 — the  week  before 
the  death  of  Franz  Ferdinand. 

The  second  proposal  went  by  the  name  of  Trialism. 
The  plans  differed  considerably  in  detail;  but  their  common 
principle  was  that  in  place  of  the  dualistic  system  of 
Austria-Hungary  with  two  units  dominated  by  the  Ger- 
mans and  Magyars  respectively,  there  should  be  three 
units  with  the  Slavs  in  control  of  the  third.  Such  a  settle- 
ment, however,  would  not  be  satisfactory  if  the  proposed 
third  unit  did  not  include  the  Slovenes;  but  the  Magyars 
could  not  be  persuaded  to  give  up  their  hold  on  Croatia 
and  Fiume,  and  the  Serbs  both  in  Serbia  and  Austria- 
Hungary  would  have  nothing  to  do  with  any  proposal 
favored  by  the  Hapsburg  dynasty  itself. 

A  third  suggestion  for  the  solution  of  the  problem  of 
Jugoslavia  was  a  Greater  Serbia.  It  proposed  to  bring 
into  Serbia  all  the  Jugoslavs  who  professed  the  orthodox 
religion  and  used  the  Cyrillic  alphabet.  But  it  was  mani- 
fest that  the  creation  of  a  Serbia  of  such  dimensions  could 


JUGOSLAVIA 


345 


result  only  from  military  victory  over  the  Hapsburg  Mon- 
archy. 

The  ultimate  solution  of  the  Jugoslav  problem  entered 
the  field  of  practical  politics  only  with  the  progress  of 
the  war.  This  solution  was  that  all  Jugoslavia  be  set 
wholly  free  from  Austria  and  Hungary.  Jugoslav  patriots 
formed  a  committee  in  London  in  1915  and  issued  their 
program  for  a  united  and  free  Jugoslavia,  but  the  En- 
tente as  a  whole  had  no  policy.  The  hopes  and  fears 
of  the  Jugoslavs  were  variously  affected  by  the  Treaty 
of  London  of  1915,  the  declaration  of  war  by  Italy,  the 
death  of  the  Emperor  Francis  Joseph  (November,  1916), 
the  Allied  war  aims  issued  in  December,  1916,  when  the 
Central  Empires  began  then*  overtures  for  peace,  the 
Russian  Revolution,  and  the  entrance  of  America  into 
the  war.1  In  July,  1917,  the  Serbian  Prime  Minister  and 
the  President  of  the  Jugoslav  Committee  issued  the  Mani- 
festo (Pact)  of  Corfu  which  laid  down  the  outlines  of  the 
future  Kingdom  of  the  Serbs,  Croats,  and  Slovenes.  This 
was  after  the  Russian  Revolution  when  there  was  no  rea- 
son why  the  Serbian  Government  should  not  openly  adhere 
to  the  program  of  a  united  Jugoslavia.  This  Manifesto 
was  a  decisive  point  in  the  Jugoslav  movement;  for  while 
there  was  no  official  action,  a  favorable  reception  was  ac- 
corded to  it  in  Entente  countries. 

By  August,  1918,  the  authority  of  the  Austro-Hungarian 
government  was  coming  to  an  end  in  Slovene  lands.  The 
connection  with  the  Hapsburg  Monarchy  was  denounced; 

aFor  a  full  account  of  the  Jugoslav  movement  during  th«  war,  see  Temperley, 
Ed.,  op.  cit.,  Vol.  IV,  pp.  176  ff.  In  1917  the  Austrian  Government  found  itself  in  a 
position  of  great  difficulty  owing  to  the  fact  that  in  the  Reichsrat  the  Slavs  were  in 
a  small  majority  over  any  combination  of  the  other  racial  representatives.  The 
passage  of  the  budget  was  necessary,  and  consequently  the  Government  issued 
a  number  of  hints  as  to  local  autonomy.  When  the  Reichsrat  met  (May  30, 
1917)  the  Jugoslav  Club  issued  a  declaration  demanding  "the  unification  of  all 
territories  of  the  monarchy  inhabited  by  Slovenes,  Croats,  and  Serbs  in  one 
independent  political  body  free  from  all  foreign  domination  and  founded  on  a 
democratic  basis  under  the  sceptre  of  the  Hapsburg  Dynasty."  In  subsequent 
Jugoslav  declarations  the  reference  to  the  House  of  Hapsburg  was  usually 
omitted. 


Jugoslar 
movement 
during 
the  war 


Assumption 
of  political 
power 


346       NEW  CONSTITUTIONS  OF  EUROPE 


Jugoslavia 
or  Greater 
Serbia 


Constituent 
assembly 
of  1920 


and  local  councils  were  organized  in  the  provinces  to  take 
over  the  direction  of  affairs  from  the  imperial  and  royal 
authorities.  The  Jugoslav  parts  of  the  Monarchy  united 
and  the  government  automatically  passed  into  their  hands. 
For  the  moment  Jugoslavia  was  recognized  by  no  one  be- 
yond its  own  frontiers  except  the  Austrian  Emperor,  who 
on  October  31  sanctioned  the  transference  to  it  of  the 
Austro-Hungarian  fleet  on  the  Adriatic. 

All  Austrian  and  Hungarian  solutions  of  the  Jugo- 
slav question  were  now  impossible.  The  problem  was 
whether  the  mutual  jealousies  of  the  Serbs  and  Croats 
were  still  strong  enough  to  force  the  creation  of  a  Greater 
Serbia  and  a  separate  Croatia,  or  whether  the  unity  of 
the  race  would  at  last  produce  a  united  Jugoslavia.  Union 
was  decided  upon.  In  November  a  joint  Cabinet  was 
instituted  and  the  military  forces  were  merged  .into  one 
army.  On  December  4  the  Kingdom  of  the  Serbs, 
Croats,  and  Slovenes  was  proclaimed.  It  was  formed  of 
the  former  Kingdom  of  Serbia,  to  which  were  joined  the 
former  Kingdom  of  Montenegro1  and  the  districts  of 
Bosnia,  Herzegovina,  Croatia,  Dalmatia,  Slavonia,  a  part 
of  western  Bulgaria,  and  part  of  the  Banat  of  Temesvar.2 
The  Croats  and  Slovenes  wished  to  call  their  state  Jugo- 
slavia, but  the  Serbs  opposed  this  energetically.  They 
did  not  wish  an  appellation  in  which  the  word  Serb  would 
disappear.3 

Elections  for  a  constituent  assembly  to  draft  a  constitu- 
tion were  held  on  November  28, 1920,  and  resulted  as  fol- 
lows: Democrats,  94;  Radicals,  93;  Communists,  58; 
Radich  (Croatian  autonomy),  50;  Bosnian  Moslems,  24; 
Catholic  Popular  party,  23;  Peasants,  39;  Social  Demo- 
crats, 10;  National  Socialists  (Slovene),  2;  minor  parties, 


JFor  the  attitude  of  Montenegro,  see  Temperley,  Ed.,  op.  cit.,  Vol.  IV,  p.  203. 
'Bowman,  The  New  World,  p.  253  (Yonkers  1922). 

'Albert  Mousset,  "La  Constitution  Yougoslave,"  U  Europe  Nouvette,  July  30 
1921. 


JUGOSLAVIA  347 

26.1  Work  on  the  constitution  was  delayed  because  of 
disagreement  on  a  number  of  issues,  the  chief  of  which 
was  that  of  a  federal  versus  a  unitary  state.2  A  constitu- 
tional monarchy  was  determined  upon,  but  the  peasant 
and  clerical  parties  of  Croatia  desired  to  set  up  a  republic.1 
The  constituent  assembly,  however,  completed  its  work, 
and  the  constitution  went  into  effect  on  June  28,  1921. 

The  new  constitution  owes  a  great  deal  to  the  Serbian 
Constitution  of  1888,  which  was  reenacted  in  1903,  and 
which,  in  turn,  is  heavily  indebted  to  the  Belgian  Constitu- 
tion. In  fact,  as  two  recent  writers  point  out,  "the  more 
one  compares  the  constitutions  of  Serbia4  and  Jugoslavia, 
the  less  one  is  inclined  to  call  the  latest  promulgation  a 
new  constitution  at  all;  it  seems  to  be  rather  an  extension 
of  the  old  instrument  to  cover  new  territory,  rather  than 
a  totally  new  instrument  for  the  administration  of  govern- 
ment. 

"The  older  document  provided  for  representative  par- 
liamentary government  under,  of  course,  the  same  Mon- 
arch, Peter  I  (1903),  who  was  the  King  upon  the  passage 
of  the  present  constitution.  It  emphasized,  as  this  does, 
the  parliamentary  type  of  government.  There  was  then, 

J"  Record  of  Political  Events,"  Political  Science  Quarterly,  Supplement,  p.  97, 
September,  1921. 

*See  above,  pp.  77-78. 

3  A  Committee  which  signs  itself  "the  63  Delegates  of  Croatia,  Slavonia, 
Dalinatiu,  and  Bosnia-Herzegovina  united  in  the  'Croatian  Block,'  "  issued  a 
manifesto  dated  February,  1922,  and  addressed  "to  all  free  civilized  nations 
and  to  the  delegates  at  the  Conference  of  Genoa."  The  manifesto  declared 
that  the  Croatian  nation  was  not  represented  in  the  Constituent  Assembly — 
the  majority  of  the  Croatian  national  deputies  having  decided  not  to  send  repre- 
sentatives— and  that  "the  Croatian  Nation  will  neither  recognize  this  Assembly 
nor  accept  its  decisions  brought  against  the  will  of  the  Croatian  people  and  ir 
the  absence  of  its  delegates."  It  is  charged  that  the  Constitution  "was  forced 
upon  the  Croatian  nation  in  a  fraudulent  manner  and  has  no  moral  or  legal  basis." 
See  also  M.  W.  Fodor,  "A  New  Country  but  Old  Mistakes,"  Foreign  A  fain, 
April,  1922. 

4The  Serbian  Constitution  of  1903  appears  in  French  translation  in  British  and 
Foreign  State  Papers,  Vol.  81,  p.  508  and  Vol.  108,  p.  566;  Dareste,  Lea  Constitu- 
tions Modernes,  Vol.  II,  p.  257  (3d  ed.,  Paris,  1910),  and  Wright,  The  Constitu- 
tions of  the  States  at  War,  1914-1918,  p.  553  (Washington,  1919). 


Constitution 
of  1921 
similar  to 
Serbian 
Constitution 
of  1903 


348       NEW  CONSTITUTIONS  OF  EUROPE 

also,  but  a  single  chamber  in  the  legislative  branch.  The 
provisions  in  regard  to  budgetary  control,  and  even  for 
the  sessions  of  the  legislature,  resembled  those  provided 
for  in  1921.  In  this  year  again  reappears  the  Court  of 
Accounts,  the  Council  of  State,  and  you  find  similar  pro- 
visions for  the  jury  in  1921  as  in  1903.  The  earlier  con- 
stitution, like  the  later,  provides  for  proportional  represen- 
tation in  elections  and  the  scrutin  de  lists. 

"Still  more  important  it  is  to  note  that  the  great  space 
given  to  the  detailed  Bill  of  Rights  in  the  Jugoslav  con- 
stitution goes  back  to  the  many  clauses  in  the  Serbian 
constitution,  which  seemed  to  have  caused  as  much  re- 
mark then  as  these  same  provisions  do  now."1 

2.   CONSTITUTION  OF  THE  KINGDOM  OF  THE  SERBS, 
CROATS,  AND  SLOVENES  (JUGOSLAVIA) 

ADOPTED  BY  THE  NATIONAL  ASSEMBLY  IN  BELGRADE  ON  JUNE 
15,  1921,  AND  PROCLAIMED  BY  THE  KING  ON  JUNE  28,  1921 

SECTION  I 
GENERAL  PROVISIONS 

Article  1.  The  government  of  the  Kingdom  of  the  Serbs, 
Croats,  and  Slovenes  is  a  constitutional  parliamentary  and  he- 
reditary monarchy.  The  official  title  of  the  government  is  the 
Kingdom  of  the  Serbs,  Croats,  and  Slovenes. 

Art.  2.  The  coat  of  arms  of  the  Kingdom  is  a  double-headed 
white  eagle  with  wings  widespread  upon  a  red  shield;  the  crown 
of  the  Kingdom  is  directly  above  both  heads  of  the  double- 
headed  white  eagle;  upon  the  breast  of  the  eagle  is  a  shield  hav- 
ing thereon  the  Serbian  coat  of  arms,  consisting  of  a  white  cross 

'Wolfe  and  Andrews,  "The  Jugoslav  Constitution,"  Current  History,  February, 
1922.  The  translation  of  the  Jugoslav  Constitution  that  follows  was  made  by 
John  R.  Palandech,  a  Serbian  publisher,  and  appeared  in  the  Chicago  Daily 
News  Almanac  and  Year  Book  for  1922,  page  711.  It  has  been  revised  by  the 
Legation  of  the  Kingdom  of  the  Serbs,  Croats,  and  Slovenes  in  Washington  and 
corrections  suggested  by  the  Legation  have  been  incorporated.  Another 
English  translation  by  Howard  Webster  Wolfe  and  Arthur  Irving  Andrews  ap- 
peared in  Current  History,  February,  1922.  An  excellent  French  version  was 
published  in  L'Europe  NouveUe,  July  30  and  August  6,  1921. 


JUGOSLAVIA  349 

upon  a  red  shield,  with  one  jewel  in  each  angle  of  the  cross;  the 
Croatian  coat  of  arms,  consisting  of  a  shield  with  twenty-five 
squares  alternately  of  red  and  silver  color;  the  Slovenian  coat 
of  arms,  consisting  of  three  gold  six-angled  stars  upon  a  blue 
shield.  Under  this  is  a  white  half  moon. 

The  flag  is  blue,  white,  and  red,  in  horizontal  stripes  against 
an  upright  spear. 

Art.  3.  The  official  language  of  the  Kingdom  is  Serbo- 
Croatian-Slovene  . 


Art.  4.  The  right  of  citizenship  is  equal  (uniform)  in  the  en- 
tire kingdom.  All  the  citizens  are  equal  before  the  law.  All 
enjoy  equal  protection  of  the  authorities.  Nobility  and  titles 
are  not  recognized,  neither  are  any  privileged  rights  of  birth. 

Art.  5.  Personal  liberty  is  guaranteed.  No  one  can  be  held 
responsible  or  imprisoned  or  deprived  of  his  liberty  by  any  one 
except  in  cases  provided  by  law.  No  one  can  be  imprisoned 
for  any  crime  without  written  statements  giving  the  reasons 
and  facts  substantiating  the  charges  of  the  competent  authori- 
ties. The  charges  must  be  submitted  to  the  party  accused  at 
the  time  of  arrest,  or,  if  that  is  not  possible,  at  the  latest  within 
twenty-four  hours  from  the  time  of  imprisonment.  Against  an 
order  for  imprisonment  an  appeal  can  be  made  within  three 
days  to  the  competent  court.  If  there  is  no  appeal  filed  within 
this  period  the  prosecuting  authorities  must  send  their  decision 
to  the  court  within  twenty-four  hours.  The  court  must  make 
its  findings  in  the  period  of  two  days  from  the  time  it  received 
the  decision.  The  findings  of  the  court  are  supreme.  Organs  of 
the  authorities  who  violate  these  provisions  shall  be  punished 
for  unlawful  deprivation  of  liberty. 

Art.  6.     No  one  can  be  tried  except  by  a  competent  court. 

Art.  7.  No  one  can  be  sentenced  until  he  has  been  authorita- 
tively heard  or  has  been  summoned  to  defend  himself  according 
to  law. 

Art.  8.  Punishment  can  be  dealt  only  by  law  and  applied 
only  to  the  acts  for  which  the  law  provides  and  prescribes  such 
punishment. 

Art.  9.  The  death  penalty  cannot  be  inflicted  for  purely 
political  crimes,  except  in  cases  of  accomplished  or  attempted 


350       NEW  CONSTITUTIONS  OF  EUROPE 

assassination  of  the  ruler  and  of  members  of  the  royal  house, 
for  which  the  death  penalty  is  provided  in  the  criminal  code. 
Exceptions  are  made  in  addition  to  the  above  in  cases  where 
with  purely  political  crimes  some  other  criminal  act  is  committed 
for  wyhich  the  death  penalty  is  provided  in  the  criminal  code, 
and  also  in  cases  which  the  military  law  punishes  with  the  death 
penalty. 

Art.  10.  No  citizen  can  be  exiled  from  the  country.  A 
citizen  cannot  be  forcibly  moved  within  the  border  of  the  coun- 
try from  one  place  to  another,  nor  can  he  be  confined  in  one 
place,  except  in  cases  for  which  the  law  explicitly  provides.  Un- 
der no  condition  can  any  one  be  driven  out  from  his  native  place 
without  due  process  of  law. 

Art.  11.  The  home  is  inviolable.  The  authorities  cannot 
attempt  any  search  or  investigation  in  the  home  of  a  citizen 
except  in  cases  authorized  by  law  and  in  the  manner  prescribed 
by  law.  Before  any  search  can  be  made  the  authorities  are  in 
duty  bound  to  give  the  person  whose  home  is  being  searched  a 
written  notice  from  the  competent  authorities  on  the  strength 
of  which  the  search  is  made.  Against  this  order  there  is  an  ap- 
peal to  the  court  of  first  instance.  However,  the  appeal  does 
not  delay  the  process  of  search.  The  search  must  always  be 
made  in  the  presence  of  two  citizens.  Immediately  after  the 
search  is  completed  the  authorities  are  bound  to  grve  the  person 
whose  home  was  searched  a  statement  of  the  results  of  the  search 
and  a  signed  list  of  all  articles  taken  for  the  purpose  of  further 
investigation.  At  night  the  police  can  enter  a  private  home 
only  in  cases  of  extreme  necessity  or  when  they  are  appealed 
to  for  help  from  the  home.  To  that  act  a  representative  of  the 
community  or  two  citizens  should  be  present,  except  in  cases 
where  an  appeal  for  help  is  made.  Agents  (officials)  of  the 
authorities  who  violate  these  orders  will  be  punished  for  an 
unlawful  violation  of  the  home. 

Art.  12.  Freedom  of  faith  and  conscience  is  guaranteed. 
Acknowledged  religious  denominations  are  equal  before  the  law 
and  are  at  liberty  to  profess  their  faith  publicly.  Enjoyment 
of  civil  and  political  right  is  independent  of  any  religious  belief. 
No  one  can  be  exempt  from  his  civic  and  military  duties  and 
responsibilities  upon  the  grounds  of  his  religious  belief.  Creeds 
that  have  secured  lawful  recognition  in  any  part  of  the  kingdom 
are  sanctioned.  Other  creeds  can  be  recognized  only  by  the 
law.  Authorized  and  recognized  creeds  govern  their  internal 


JUGOSLAVIA  351 

church  activities,  affairs,  and  administration  independently,  and 
manage  their  property  and  funds  within  the  boundary  of  the 
law.  No  one  is  compelled  publicly  to  confess  his  religious  be- 
lief. No  one  is  compelled  to  take  a  part  in  religious  activities, 
feasts,  ceremonials,  and  exercises,  except  at  national  holidays 
and  celebrations,  within  the  manner  provided  by  law  for  per- 
sons who  are  subordinate  to  parental,  guardian,  or  military  au- 
thorities. Authorized  and  recognized  denominations  may  pre- 
serve the  ties  of  their  faith  with  the  religious  heads  outside  of 
the  borders  of  the  country  in  so  far  as  the  necessity  of  spiritual 
regulations  of  the  different  creeds  require.  The  manner  in 
which  these  ties  should  be  preserved  will  be  regulated  by  law. 
The  disbursement  which  the  national  budget  provides  for  law- 
ful religious  purposes  will  be  divided  among  lawful  and  recog- 
nized spiritual  bodies,  according  to  the  number  of  their  faithful 
and  actually  shown  necessity.  Spiritual  representatives  cannot 
employ  their  spiritual  authority  outside  of  their  spiritual  edi- 
fices or  outside  of  their  spiritual  character,  or  in  any  act  while 
doing  their  official  duty  in  partisan  affairs. 

Art.  13.  Freedom  of  press  is  guaranteed.  No  measure  can 
be  instituted  that  would  prevent  printing,  selling,  and  distribut- 
ing of  literature  and  newspapers.  Censorship  can  be  enforced 
only  in  time  of  war  or  mobilization  and  that  for  measures  fore- 
seen by  law.  Distribution  and  selling  of  newspapers  or  printed 
matter  which  contain  libel  on  the  ruler  or  the  members  of  the 
royal  house,  foreign  ruling  heads,  national  assembly,  indirectly 
calling  upon  the  citizens  to  change  the  constitution  or  the  na- 
tional laws  by  force,  or  which  contain  offense  against  public 
morals,  are  forbidden.  However,  in  these  cases  the  authorities 
are  bound  to  take  the  matter  to  court  within  twenty-four  (24) 
hours  after  the  suspension,  and  the  court  is  in  duty  bound  to  sus- 
tain or  dismiss  the  charge  within  twenty-four  hours;  otherwise 
the  suspension  is  considered  as  rescinded.  Courts  of  proper 
jurisdiction  decide  the  matter  of  damages  independently  of 
court's  decision  regarding  the  suspension.  For  an  offense  com- 
mitted by  the  press  the  following  are  responsible:  The  writer, 
editor,  printer,  publisher,  and  distributor.  By  special  law  for 
the  press  it  will  be  decided  when  and  in  what  cases  and  in  what 
manner  any  of  the  above-mentioned  persons  will  be  responsible 
for  the  offense  committed  through  the  press.  All  offenses  com- 
mitted by  the  press  will  be  tried  by  courts  of  proper  jurisdic- 
tion. 


352       NEW  CONSTITUTIONS  OF  EUROPE 

Art.  14.  Citizens  have  the  right  of  assembly,  meetings,  and 
conferences.  Additional  regulations  regarding  this  will  be  pro- 
vided by  law.  No  person  will  be  permitted  to  carry  arms  to 
meetings.  Holding  of  open-air  meetings  must  be  announced  to 
the  proper  authorities  at  least  twenty-four  hours  beforehand. 
Citizens  have  the  right  of  assembly  for  any  objects  that  are  not 
punishable  by  law. 

Art.  15.  Citizens  have  the  right  to  petition.  Petition  can  be 
signed  by  one  or  more  of  them,  as  wrell  as  all  judicial  persons. 
Petitions  can  be  submitted  to  any  of  the  authorities  without 
exception. 

Art.  16.  Learning  and  arts  are  free  and  enjoy  the  protection 
and  support  of  the  government.  University  education  is  free. 
Education  is  national.  Education  is  based  upon  the  same  foun- 
dation throughout  the  country,  adapting  itself  to  the  localities 
for  which  it  is  intended.  All  schools  must  teach  moral  uplift  and 
broad  national  ideals  in  the  spirit  of  national  unity  and  religious 
tolerance.  Elementary  education  is  national,  general,  and  com- 
pulsory. Religious  training  is  given  according  to  the  wishes 
of  the  parent  or  elders,  based  on  their  creeds  and  in  accordance 
with  their  religious  beliefs.  Technical  schools  will  be  established 
according  to  the  needs  of  vocations.  Education  is  given  by  the 
government  without  entrance  fees,  tuition,  or  other  taxes.  The 
manner  in  which  private  schools,  their  like,  and  under  what 
conditions  they  shall  be  permitted  will  be  provided  by  law.  All 
institutions  for  education  are  under  government  control.  The 
government  will  aid  the  work  of  national  education.  Minorities 
of  race  and  language  are  given  elementary  education  in  their 
mother  tongue,  under  provisions  which  will  be  prescribed  by 
law. 

Art.  17.  The  secrecy  of  letters,  telegrams,  and  telephone 
communication  is  inviolable,  except  in  cases  of  criminal  investi- 
gations, mobilization,  or  war.  All  those  who  are  guilty  of  viola- 
ting the  secrecy  of  postal,  telegraph,  or  telephone  communication 
will  be  punished  according  to  law. 

Art.  18.  Every  citizen  has  the  right  directly  and  without 
any  one's  approval  to  bring  complaint  to  the  court  against  the 
governmental  or  self-governing  bodies  for  criminal  acts  which 
they  may  commit  against  him  in  their  official  capacity.  For  min- 
isters, judges,  and  soldiers  under  colors,  special  provisions  apply. 
For  damages  done  to  citizens  by  governmental  or  self-governing 
bodies  by  illegal  performance  of  their  duties,  the  government  or 


JUGOSLAVIA  353 

self-governing  bodies  are  responsible  before  the  proper  court. 
The  agent  in  question  is  responsible  to  them.  Limitation  for 
damages  expires  in  nine  months. 

Art.  19.  To  all  positions  in  all  branches  of  government  ser- 
vice all  citizens  are  equally  eligible  under  the  provisions  of  the 
law,  those  by  birth  as  well  as  those  who  become  naturalized, 
who  are  of  the  Serbo-Croat-Slovene  nationality.  Other  nat- 
uralized citizens  can  obtain  government  positions  only  if  they 
are  residents  of  the  country  for  ten  years,  and  by  special  permis- 
sion of  the  government's  council  upon  the  prior  recommenda- 
tion of  the  competent  minister. 

Art.  20.  Every  citizen  enjoys  the  protection  of  the  govern- 
ment in  foreign  countries.  Every  citizen  is  at  liberty  to  with- 
draw from  citizenship  after  he  has  fulfilled  his  obligations  to 
the  government.  Extradition  of  citizens  is  forbidden. 

Art.  21.  Every  citizen  is  obliged  to  obey  the  law,  serve  the 
interest  of  national  unity,  defend  his  native  country,  and  carry 
the  national  burden  according  to  his  earning  ability,  according 
to  the  provisions  of  the  law. 

SECTION  m 
SOCIAL  AND  ECONOMIC  REGULATIONS 

Art.  22.  The  government  will  endeavor  to  create  for  its 
citizens  equal  opportunity  to  prepare  themselves  for  profitable 
vocations  to  which  they  are  inclined.  In  that  direction  it  will 
establish  educational  trade  organizations  and  arrange  for  per- 
manent assistance  for  education  of  worthy  poor  children. 

Art.  23.  The  laboring  classes  are  under  the  protection  of  the 
government.  Women  and  minors  must  be  protected  from  work 
dangerous  to  their  health.  The  law  provides  separate  measures 
for  the  welfare  and  protection  of  the  workman  and  prescribes 
working  hours  in  all  undertakings. 

Art.  24.  Inventions  are  the  property  of  the  inventor  and 
enjoy  the  protection  of  the  government. 

Art.  25.  Freedom  of  negotiation  and  organization  in  busi- 
ness affairs  is  recognized  in  so  far  as  it  does  not  interfere  with 
social  interests. 

Art.  26.  The  government  has,  in  the  interest  of  the  whole 
and  based  upon  the  spirit  of  the  law,  the  right  and  duty  to  inter- 
vene in  the  economic  affairs  of  its  citizens  in  the  spirit  of  justice 
and  for  the  prevention  of  social  adversity. 


354       NEW  CONSTITUTIONS  OF  EUROPE 

Art.  27.  The  government  will  take  care:  (1)  To  improve 
general  hygienic  and  social  conditions,  which  are  essential  to 
national  health;  (2)  to  give  special  protection  to  mothers  and 
small  children;  (3)  to  guard  the  health  of  all  citizens;  (4)  to 
check  and  prevent  all  the  acute  and  chronic  contagious  diseases, 
as  well  as  to  check  the  harmful  use  of  alcohol;  and  (5)  to  furnish 
free  medicine  and  other  necessities  for  the  protection  of  national 
health  to  poor  and  needy  citizens. 

Art.  28.     Marriage  is  under  the  protection  of  the  government. 

Art.  29.  The  state  aids  materially  national  associations;  also 
the  state  aids  materially  other  national  economic  organizations 
that  are  not  for  profit.  To  such  associations  and  to  such  eco- 
nomic organizations  priorities  are  given  in  the  transaction  of 
business  upon  equal  terms  with  other  private  institutions.  Laws 
will  be  formulated  as  regard  the  associations  which  will  apply 
to  the  entire  country. 

Art.  30.  By  special  legislation  betterment  of  the  agrarian 
conditions  will  be  provided. 

Art.  31.  Protection  of  workmen  in  case  of  accident,  illness, 
lack  of  work,  incapability,  old  age,  or  death  will  be  provided  by 
special  legislation. 

Art.  32.  Invalids,  war  orphans,  war  widows,  the  poor  and 
those  incapable  of  work,  parents  of  the  killed  or  those  who  died 
in  the  war,  enjoy  special  protection  of  the  state  and  assistance 
as  a  mark  of  appreciation.  The  question  of  rehabilitation  of 
the  invalid  and  the  education  of  war  orphans  for  work  and  the 
future  will  be  regulated  by  law. 

Art.  33.  The  rights  of  the  workingmen  to  organize  for  the 
purpose  of  improving  working  conditions  is  guaranteed. 

Art.  34.  To  navigation  and  fisheries  will  be  given  special 
attention.  The  welfare  of  the  seaman  in  case  of  sickness,  in- 
validity, old  age,  and  death  will  be  provided  for  by  special  law. 

Art.  35.  The  state  will  supervise  the  building  and  maintain- 
ing of  all  transportation  facilities  wherever  the  general  national 
interest  demands. 

Art.  36.     Usury  of  every  description  is  forbidden. 

Art.  37.  Property  is  guaranteed.  Property  creates  respon- 
sibilities. The  use  of  property  must  not  be  to  the  detriment  of 
the  whole.  Contents,  size,  and  limits  of  private  property  are 
fixed  by  law.  Expropriation  of  private  property  in  the  public 
interest  is  permissible  according  to  law,  with  just  compensation. 

Art.    38.     Fidei   commissum   is   abolished.     Bequests   with 


JUGOSLAVIA  355 

general  advantageous  purposes  are  recognized.  It  will  be  de- 
termined by  legislation  what  changes  of  the  bequests  can  be 
made  in  accordance  with  change  of  conditions. 

Art.  39.  By  the  inheritance  tax  law  the  government  will  be 
assured  of  its  participation  in  the  inheritance,  having  in  mind  the 
interests  of  the  relations  between  the  heir  and  the  deceased  and 
the  value  of  the  inheritance. 

Art.  40.  The  supplying  of  provisions  and  other  necessities 
for  the  army  is  carried  out  for  just  compensation. 

Art.  41.  Large  private  forest  tracts  are  expropriated  accord- 
ing to  law  and  become  the  property  of  the  state  or  its  self- 
governing  bodies.  The  law  will  provide  how  large  forest  tracts 
can  be  property  of  other  lawful  public  bodies  that  now  exist  or 
will  be  created.  Natural  forestry,  whose  cultivation  is  neces- 
sary for  climatical  and  cultural  purposes,  also  passes  over,  ac- 
cording to  the  law  of  expropriation,  to  the  ownership  of  the  state 
or  its  self-governing  bodies,  in  so  far  as  forestation  cannot  be 
done  by  other  means.  Large  forest  tracts  which  foreign  powers 
have  given  to  individual  persons  become,  according  to  law, 
the  property  of  the  state  or  municipality  without  any  compensa- 
tion to  those  persons.  The  forestry  law  will  make  provisions 
under  which  farmers  and  those  who  are  indirectly  occupied 
with  tilling  the  land  can  benefit  by  wood-cutting  for  building 
and  fuel;  also  for  grazing  purposes  in  the  state  forests. 

Art.  42.  The  feudal  system  is  abolished  from  the  day  of  the 
liberation  from  foreign  authority.  In  so  far  as  before  that  time 
injustice  was  committed  by  the  feudal  system  or  by  its  trans- 
formation to  self -justification,  these  conditions  must  be  cor- 
rected by  law.  Land  tenants  and  land  workers  in  general  who 
cultivate  lands  in  tenancy  are  considered  freeholders  of  govern- 
ment lands  without  any  compensation  for  the  same,  and  they 
will  receive  title  to  the  property. 

Art.  43.  Expropriation  of  large  estates  and  their  apportion- 
ment to  ownership  to  those  who  till  the  lands  will  be  regulated 
by  law.  The  law  will  provide  the  kind  of  compensation  that 
will  be  given  expropriated  estates.  For  large  estates  which 
belong  to  members  of  the  former  alien  dynasty  and  those  which 
the  foreign  powers  have  granted  to  individuals,  no  compensation 
will  be  given.  Land  settlements  "will  be  carried  out  primarily 
by  the  aid  of  organized  colonization  societies,  seeing  that  the 
inheritors  must  be  provided  with  necessary  means  for  success- 
ful production.  In  colonization  and  in  apportionment  of  ex- 


356       NEW  CONSTITUTIONS  OF  EUROPE 

propriated  lands,  needy  soldiers  have  first  choice,  meaning  those 
who  have  fought  for  the  liberation  of  the  Serbs,  Croats,  and 
Slovenes  and  their  families.  The  law  will  provide  the  maximum 
possession  of  property  and  the  cases  in  which  the  minimum  of 
land  cannot  be  alienated  from  them. 

Art.  44.  For  the  framing  of  social  and  economic  legislation 
the  economic  council  is  created.  Its  regulations,  duties,  and 
competence  will  be  designated  by  law. 

SECTION  rv 
GOVERNMENT  AUTHORITIES 

Art.  45.  All  government  functions  are  carried  out  according 
to  this  constitution. 

Art.  46.  Legislative  power  is  vested  in  the  King  and  National 
Assembly  together. 

Art.  47.  Executive  power  is  administered  by  the  King, 
through  his  responsible  ministers,  according  to  the  provisions 
of  the  constitution. 

Art.  48.  Judicial  power  is  administered  by  the  courts.  Their 
rulings  and  sentences  are  pronounced  and  administered  in  the 
name  of  the  King,  according  to  law. 


SECTION  v 
THE  KING 

Art.  49.  The  King  approves  and  proclaims  the  laws,  appoints 
government  officials,  and  gives  military  titles  as  prescribed  by 
law.  The  King  is  the  supreme  commander  of  the  entire  military 
forces.  He  gives  decorations  and  other  honorary  distinctions. 

Art.  50.  The  King  has  the  right  to  grant  amnesty  for  political 
and  military  offenses.  Amnesty  nullifies  the  legal  consequences 
of  punishable  acts,  but  amnesty  cannot  interfere  in  damages  al- 
lowed to  individual  persons.  Amnesty  can  be  given  before  the 
beginning  of  the  proceedings,  during  the  proceedings,  or  after 
the  decision  is  given.  Amnesty  is  general  or  individual.  For 
amnesty  to  the  ministers  it  is  necessary  first  to  have  the  concur- 
rence of  the  National  Assembly.  However,  no  amnesty  can 
be  given  to  ministers  until  after  the  sentence  is  pronounced. 
The  King  has  the  power  to  pardon.  He  can  pardon,  reduce,  or 
lighten  the  sentence.  The  right  to  pardon  for  the  crime  of  the 


JUGOSLAVIA  357 

defendant,  on  personal  appeal,  will  be  provided  by  the  law  of 
court  procedure  in  criminal  acts. 

Art.  51.  The  King  represents  the  nation  in  all  intercourse 
with  foreign  governments.  He  declares  war  and  makes  peace. 
If  the  country  is  not  attacked  or  war  is  not  declared  against  it  by 
some  other  nation,  it  is  necessary  first  to  have  the  consent  of  the 
National  Assembly  to  declare  a  war.  If  war  is  declared  against 
the  country  or  the  country  is  attacked,  the  National  Assembly 
must  be  convened  at  once. 

Art.  52.  The  King  calls  the  National  Assembly  in  regular  or 
extra  sessions.  He  opens  and  closes  the  sessions  in  person  with 
a  message  from  the  throne  or  through  the  Council  of  Ministers 
by  a  message  or  a  decree.  The  message  from  the  throne,  com- 
munication, or  decree  must  be  signed  by  all  the  ministers.  The 
decree  by  which  one  session  is  adjourned  must  contain  the  order 
for  the  date  of  calling  a  new  session.  The  King  can  at  all  times, 
in  case  of  national  emergency,  convene  the  National  Assembly 
which  has  adjourned.  The  King  has  the  right  to  dismiss  the 
National  Assembly,  but  the  decree  of  its  dismissal  must  contain 
an  order  for  new  election,  at  the  latest  within  three  months' 
time,  and  an  order  for  convening  of  the  National  Assembly,  at 
the  latest  within  four  months  from  the  day  of  the  dismissal  of 
the  assembly.  The  decree  to  dissolve  the  National  Assembly 
is  attested  to  by  all  ministers. 

Art.  53.  The  King  cannot  rule  over  some  other  state  at  the 
same  time  without  the  consent  of  the  National  Assembly.  If 
the  King  should,  notwithstanding  this  act,  accept  the  crown  of 
some  other  country  it  will  be  considered  that  he  has  resigned 
the  rulership  of  the  Kingdom  of  the  Serbs,  Croats,  and  Slovenes. 

Art.  54.  No  act  of  the  King's  authority  is  valid  nor  can  it 
be  executed  unless  it  has  been  signed  by  the  competent  minister. 
For  all  King's  actions,  verbal  or  written,  signed  or  unsigned,  as 
well  as  for  all  his  acts  of  political  nature,  the  competent  minister 
is  responsible.  For  the  actions  of  the  King,  as  the  commander 
in  chief  of  the  army,  the  minister  of  war  and  navy  is  responsible. 

Art.  55.  The  King  and  the  heir  to  the  throne  are  of  age  when 
they  attain  18  years.  The  King's  person  is  immune.  He  can- 
not be  held  responsible  nor  can  a  complaint  be  brought  against 
him.  This  does  not  apply  to  the  King's  personal  property. 

Art.  56.  In  the  Kingdom  of  the  Serbs,  Croats,  and  Slovenes 
the  ruler  is  Peter,  the  first  Karagorgjevich.  King  Peter's  suc- 
cessor is  Crown  Prince  Alexander  and  his  male  issue  from  a  legal 


358       NEW  CONSTITUTIONS  OF  EUROPE 

marriage  in  order  first  born.  When  the  King  has  no  male  issue 
he  will  select  for  himself  his  heir  from  the  royal  line,  with  the  ap- 
proval of  the  National  Assembly.  For  this  act  it  is  therefore 
required  a  majority  of  one-half,  plus  one  vote  of  the  entire  mem- 
bership of  the  National  Assembly. 

Art.  57.  The  royal  household  is  made  up  of  the  Queen  Wife, 
the  living  ancestors  and  heirs  to  the  King  in  direct  line,  with 
their  wives,  full  brothers  and  their  heirs,  with  their  wives,  and 
the  sisters  of  the  ruling  King.  Relatives  and  prerogatives  of 
the  members  of  the  royal  household  will  be  defined  by  statute. 
No  member  of  the  royal  household  can  become  a  minister  or  a 
member  of  the  National  Assembly. 

Art.  58.  The  King  takes  oath  before  the  National  Assembly, 
which  is  as  follows: 

"I,  [name],  ascending  the  throne  of  the  Kingdom  of  the 
Serbs,  Croats,  and  Slovenes,  and  accepting  the  royal  power,  do 
hereby  swear  in  the  name  of  Almighty  God  that  I  will  guard  the 
union  of  the  people,  independence  of  the  nation,  and  the  entity 
of  the  national  authority;  that  I  will  keep  the  constitution 
inviolable;  that  I  will  rule  by  the  constitution  and  the  law,  and 
that  I  will  endeavor  to  have  the  welfare  of  the  people  before  me, 
so  help  me  God.  Amen." 

Art.  59.  The  King  resides  in  the  country  permanently. 
Should  it  be  necessary  for  the  King  to  leave  the  country  for  a 
short  time,  the  heir  to  the  throne  will  represent  him.  If  the 
heir  to  the  throne  is  a  minor  or  prevented  from  acting  by  any 
reason,  the  King  will  be  represented  by  the  Council  of  Ministers. 
Representation  is  conformed  to  according  to  the  instructions 
given  by  the  King  within  the  bounds  of  the  constitution.  This 
applies  also  in  case  of  the  King's  disability  when  it  is  not  of  a 
permanent  nature.  During  the  absence  of  the  King  or  the  heir 
to  the  throne  the  Ministers'  Council  has  no  right  to  adjourn  the 
National  Assembly.  The  King  can  be  represented  by  the  Min- 
isters' Council  at  the  most  for  six  months.  Upon  the  expiration 
of  that  time  the  provision  made  by  constitution  relative  to 
substitutes  becomes  effective. 

SECTION  VI 
SUBSTITUTION 

Art.  60.  The  royal  prerogatives  are  performed  by  substi- 
tutes :  First,  when  the  King  is  a  minor,  and  second,  when  he  is 


JUGOSLAVIA  359 

mentally  or  physically  permanently  incapable  of  performing 
royal  acts.  The  creation  and  suspension  of  substitutes  will  be 
done  by  National  Assembly  by  secret  ballot.  When  the  Council 
of  Ministers  finds  that  the  King  is  disabled,  they  report  to  the 
National  Assembly,  together  with  an  opinion  from  three  physi- 
cians taken  from  the  national  medical  faculties.  The  same  pro- 
cedure is  followed  in  the  case  of  the  heir  to  throne. 

Art.  61.  The  right  to  substitute  for  the  King  belongs  to  the 
heir  of  the  throne  if  he  is  of  age.  If  the  heir  to  the  throne,  be- 
cause of  the  reasons  set  forth  in  Article  60,  cannot  perform 
the  duties  of  substitute,  the  National  Assembly  elects  by  secret 
ballot  three  royal  substitutes.  The  royal  substitutes  are  elected 
for  four  years.  After  that  in  case  the  substitution  has  to  be 
prolonged  for  at  least  one  year,  there  must  be  a  new  election. 
If  the  substitution  is  to  last  longer  the  election  is  again  for  four 
years.  The  substitutes  must  be  born  Serbian,  Croatian,  or 
Slovenian,  45  years  of  age,  and  of  higher  education.  Before 
they  assume  the  royal  authority  the  substitutes  will  take  an 
oath  before  the  National  Assembly  that  has  elected  them,  that 
they  will  be  faithful  to  the  King  and  that  they  will  rule  according 
to  the  constitution  and  the  laws  of  the  country. 

Art.  62.  If  one  of  the  three  substitutes  is  temporarily  absent, 
the  other  two  can  perform  the  governmental  functions  without 
him. 

Art.  63.  The  substitutes  will  supervise  the  education  of 
the  minor  King.  The  property  of  the  minor  King  will  be  super- 
vised by  guardians  named  in  the  King's  will.  If  the  deceased 
King  has  not  named  a  guardian,  they  will  be  named  by  the  sub- 
stitutes in  cooperation  with  the  Council  of  State. 

Art.  64.  Until  the  substitutes  are  elected,  the  Council  of 
Ministers  will  temporarily  execute  royal  authority  under  their 
own  responsibility. 

Art.  65.  In  case  of  death  or  abdication  of  the  King,  the  heir 
to  the  throne,  if  he  is  of  age,  immediately  takes  authority  and 
announces  the  same  to  the  people  by  proclamation.  Within 
ten  days  he  takes  the  prescribed  oath  before  the  National  Assem- 
bly. If  the  National  Assembly  has  adjourned  earlier  and  the 
new  Assembly  is  not  elected,  the  old  National  Assembly  is  recon- 
vened. 

Art.  66.  If  at  the  time  of  the  King's  death  there  is  no  male 
issue,  but  the  Queen  is  enceinte  at  the  time  of  his  death,  the  na- 
tional assembly  will  elect  temporary  substitutes  who  will  exe- 


360       NEW  CONSTITUTIONS  OF  EUROPE 

cute  the  King's  authority  only  to  the  time  of  the  birth.  The 
government  is  obliged  to  put  before  the  national  assembly  the 
opinion  of  three  physicians  taken  from  medical  faculties  of 
the  nation  as  to  the  Queen's  prospects  of  becoming  a  mother. 
This  also  applies  in  case  of  the  death  of  the  Crown  Prince  if 
his  wife  should  be  pregnant  at  the  time  of  the  King's  death. 

Art.  67.  In  case  the  throne  in  accordance  with  this  constitu- 
tion is  left  without  an  heir,  the  Council  of  Ministers  will  take 
charge  of  the  royal  powers  and  at  once  call  the  National  Assem- 
bly in  special  session,  which  will  decide  the  matter  of  succession. 

Art.  68.  The  civil  list  of  the  King  will  be  appropriated  by 
law.  The  civil  list  once  established  cannot  be  enlarged  without 
the  consent  of  the  National  Assembly,  nor  diminished  without 
the  consent  of  the  King.  The  King's  substitutes  will  receive 
from  the  state  treasury  for  the  time  they  perform  their  duties 
the  amount  allowed  by  the  National  Assembly  at  the  time  of 
their  election. 

SECTION  VII 
NATIONAL  ASSEMBLY 

Art.  69.  The  National  Assembly  is  composed  of  representa- 
tives freely  chosen  by  the  people  by  general,  equal,  direct,  and 
secret  ballot  with  representation  of  the  minority.  For  every 
40,000  inhabitants  one  representative  is  chosen.  If  the  excess 
of  inhabitants  in  one  elective  district  is  more  than  25,000,  one 
additional  representative  will  be  chosen  for  that  excess.  The 
National  Assembly  is  elected  for  four  years.  Other  regulations 
for  the  election  will  be  prescribed  by  law. 

Art.  70.  The  right  to  vote  belongs  to  every  citizen  by  birth 
or  naturalization  if  he  is  21  years  of  age.  Officers,  active  or  out 
of  service,  as  well  as  non-commissioned  officers  and  soldiers 
under  the  colors,  cannot  have  the  privilege  of  voting,  nor  can 
they  be  candidates  for  office.  The  law  will  provide  for  woman 
suffrage. 

Art.  71.  The  franchise  is  denied  temporarily  to  those  (1)  who 
are  sentenced  to  prison,  until  their  rights  are  restored;  (2) 
who  are  sentenced  to  lose  their  citizenship  for  the  duration  of 
the  sentence;  (3)  who  are  public  charges;  and  (4)  who  are  under 
guardianship. 

Art.  72.  For  representative  to  the  National  Assembly  only 
a  person  who  has  right  to  vote,  regardless  of  whether  his  name 


JUGOSLAVIA  361 

appears  on  the  ballot,  can  be  elected.  Every  candidate  must 
comply  with  the  following:  (1)  That  he  is  a  citizen  by  birth  or 
naturalization  of  the  Kingdom  of  the  Serbs,  Croats,  and  Slovenes; 
a  naturalized  citizen  if  he  is  not  of  the  nationality  of  Serbs, 
Croats,  and  Slovenes,  must  be  a  resident  at  least  ten  years  from 
the  date  of  naturalization;  (2)  that  he  is  30  years  of  age;  and 
(3)  that  he  speaks  and  writes  the  national  language.  A  na- 
tional assemblyman  cannot  at  the  same  time  be  a  government 
supply  agent  or  government  contractor. 

Art.  73.  Police,  customs,  and  forestry  officials,  as  well  as 
the  officials  of  the  agrarian  reforms,  cannot  be  candidates  unless 
they  have  resigned  one  year  prior  to  the  call  for  the  election. 
Other  officials  who  perform  public  duty  cannot  be  candidates 
in  the  election  districts  of  their  territorial  jurisdiction.  Officials 
who  are  elected  to  the  National  Assembly  must  resign  their  office 
for  the  time  of  their  tenure  as  Assemblyman.  Ministers,  active 
and  at  large,  and  university  professors  may  be  candidates  and, 
if  elected,  hold  their  positions. 

Art.  74.  Every  National  Assemblyman  represents  all  the 
people  and  not  only  those  who  have  elected  him.  The  voters 
cannot  give,  nor  the  National  Assemblyman  accept,  commanding 
and  obligatory  instructions.  All  National  Assemblymen  take 
an  oath  that  they  will  faithfully  uphold  the  constitution. 

Art.  75.  The  National  Assembly  meets  at  the  capitol  Beograd 
(Belgrade),  in  regular  session  annually  on  the  20th  day  of  Octo- 
ber, unless  it  has  been  previously  called  by  the  King's  decree 
in  special  session.  If,  in  case  of  war,  the  capital  is  moved,  the 
National  Assembly  meets  in  the  place  of  the  temporary  capital. 
Regular  call  of  the  National  Assembly  cannot  be  made  until  the 
national  budget  is  passed.  In  time  of  war  the  National  Assembly 
is  permanently  in  session  unless  the  Assembly  rules  otherwise. 

Art.  76.  The  National  Assembly  verifies  the  credentials  of 
its  members  and  passes  on  them.  The  National  Assembly  pre- 
scribes its  own  rules  of  order. 

Art.  77.  The  National  Assembly  elects  from  its  membership 
its  officers  for  every  session. 

Art.  78.  Legislative  measures  are  submitted  by  the  Minis- 
ters' Council  or  individual  ministers  with  the  authority  of  the 
King.  The  right  to  present  legislative  measures  is  a  privilege 
of  each  member  of  the  National  Assembly. 

Art.  79.  The  King  concludes  treaties  with  foreign  nations. 
However,  for  confirmation  of  those  treaties  the  concurrence 


362       NEW  CONSTITUTIONS  OF  EUROPE 

of  the  National  Assembly  is  necessary.  For  approval  of  purely 
political  agreements,  if  they  are  not  contrary  to  the  constitution 
and  the  law,  it  is  not  necessary  to  have  the  confirmation  of  the 
National  Assembly.  A  treaty  to  allow  a  foreign  army  to  occupy 
the  territory  of  the  Kingdom  or  to  pass  over  the  country  is  not 
valid  without  first  being  confirmed  by  the  National  Assembly. 
The  National  Assembly  can,  when  the  national  interests  demand 
it,  by  resolution  in  advance  authorize  the  Ministerial  Council 
to  take  measures  for  immediate  acceptance  of  the  submitted 
treaty.  National  territory  cannot  be  alienated  or  exchanged 
without  the  sanction  of  the  National  Assembly. 

Art.  80.  The  King  proclaims  the  laws  by  a  decree  which 
contains  also  the  laws  adopted  by  National  Assembly.  The 
decree  is  signed  by  all  ministers.  The  minister  of  justice  at- 
taches to  it  the  government  seal  and  publishes  the  law  in  the 
"official  organ."  The  law  becomes  effective  fifteen  days  after 
publication  in  the  "official  organ"  unless  the  law  specifies  other- 
wise. The  day  of  publication  hi  the  "official  organ "  is  counted. 

Art.  81.  The  National  Assembly  has  the  right  of  inquiry  and 
also  of  investigation  in  elections  and  purely  administrative 
questions. 

Art.  82.  Every  member  of  the  National  Assembly  has  the 
right  to  direct  questions  and  interpellations  to  the  ministers. 
The  ministers  are  obliged  to  reply  during  the  same  session  within 
the  time  prescribed  by  the  rules  of  order. 

Art.  83.  The  National  Assembly  communicates  directly  with 
the  ministers  only. 

Art.  84.  The  National  Assemblymen,  members  of  the  Govern- 
ment and  Government  representatives  are  the  only  ones  having 
right  to  speak  in  the  National  Assembly. 

Art.  85.  The  National  Assembly  can  legally  function  if  one- 
third  of  all  the  Assemblymen  are  present  at  the  sessions.  To 
carry  a  motion  it  is  necessary  to  have  a  majority  of  the  Assembly- 
men present.  In  case  of  equal  division  of  votes  the  motion  is 
considered  lost. 

Art.  86.  No  legislative  motion  can  be  debated  in  the  National 
Assembly  until  it  first  has  gone  through  the  proper  committees. 
Voting  in  the  National  Assembly  is  public;  only  the  elections  are 
carried  out  by  secret  ballot.  Votes  can  be  cast  only  in  person. 
On  every  legislative  motion  two  votes  must  be  taken  in  the  same 
session  of  the  National  Assembly  before  it  can  be  finally  carried. 

Art.  87.    At  no  tune  can  anyone  hold  an  Assemblyman  re- 


JUGOSLAVIA  363 

sponsible  for  the  vote  he  has  given  as  a  member  of  the  National 
Assembly.  For  all  statements  and  conduct  of  the  National  As- 
semblymen in  performing  their  duty  in  sessions  of  the  National 
Assembly,  in  committees,  in  special  sessions,  or  in  special  duties 
delegated  to  them  by  the  Assembly,  the  Assemblymen  are  re- 
sponsible only  to  the  National  Assembly  according  to  the  rules 
of  order. 

Art.  88.  Without  the  authority  of  the  National  Assembly  its 
members  cannot  be  held  for  any  offense  regardless  of  its  nature, 
nor  can  they  be  deprived  of  their  freedom  by  any  authority  or 
for  any  cause  as  long  as  their  mandates  have  not  expired,  except 
when  they  are  apprehended  in  the  act  of  actual  crime  or  trans- 
gression. However,  even  in  the  latter  case,  the  National  Assem- 
bly, if  in  session,  is  at  once  informed,  and  the  National  Assembly 
gives  or  rejects  the  authority  to  have  the  trial  continued  during 
the  session.  The  right  of  immunity  of  the  National  Assembly- 
man begins  on  the  day  of  his  election.  If  anyone  becomes 
Assemblyman  before  the  sentence  is  pronounced  on  him  for  any 
offense  the  authorities  that  have  the  matter  in  charge  will  in- 
form the  National  Assembly,  which  will  give  or  refuse  permission 
to  prolong  the  action.  Members  of  the  National  Assembly  can 
be  held  responsible  only  for  the  acts  of  which  they  are  accused. 

Art.  89.  The  National  Assembly  has  the  exclusive  right  to 
preserve  order  at  its  meetings  through  its  President.  No  armed 
force  can  be  placed  in  the  building  of  the  National  Assembly  nor 
its  grounds  without  the  permission  of  the  President  of  the  Na- 
tional Assembly;  without  its  permission  no  government  agents 
can  perform  any  of  its  functions  in  the  National  Assembly.  No 
one  carrying  arms  can  enter  the  grounds  of  the  National  Assem- 
bly except  persons  who  are  authorized  to  carry  weapons  and 
are  on  duty  at  National  Assembly. 

SECTION  vm 
ADMINISTRATIVE  AUTHORITY 

Art.  90.  The  Ministerial  Council  is  composed  of  all  the  minis- 
ters and  stands  immediately  under  the  King.  The  King  names 
the  President  and  members  of  the  Ministerial  Council.  Min- 
isters are  placed  at  the  heads  of  respective  branches  of  the 
government  authority.  A  minister  can  be  without  portfolio. 
State  under-secretaries  can  be  appointed  in  the  ministries  should 
a  need  require  them  for  a  specified  part  of  duties  in  that  branch 


364       NEW  CONSTITUTIONS  OF  EUROPE 

of  government  service.  The  state  under-secretaries,  if  they  are 
taken  from  the  National  Assembly,  do  not  lose  their  mandates. 
The  ministers  name  subordinate  government  officials  according 
to  the  provisions  of  the  law.  The  ministers  take  an  oath  before 
entering  upon  their  duties  of  fidelity  to  the  constitution  and  the 
King. 

Art.  91.  The  ministers  are  responsible  to  the  King  and  the 
National  Assembly.  The  King  and  the  National  Assembly  can 
accuse  ministers  for  violation  of  the  constitution  and  the  coun- 
try's laws  while  in  official  positions.  For  damages  done  by 
ministers,  by  unlawful  acts,  the  state  is  responsible. 

Art.  92.  A  minister  can  be  accused  during  the  time  of  his 
service  and  for  five  years  after  leaving  office.  A  motion  to  ac- 
cuse the  minister  must  be  made  in  writing  and  contain  the 
charges.  When  the  National  Assembly  accuses  a  minister  a 
decision  as  to  whether  or  not  the  minister  shall  be  placed  on 
trial  must  be  brought  by  two-thirds  of  the  votes  of  the  mem- 
bers present. 

Art.  93.  The  ministers  are  tried  before  the  State  Court.  The 
State  Court  is  composed  of  six  state  counselors  and  six  Supreme 
Court  judges,  who  are  chosen  by  their  respective  bodies  by  a 
ballot  in  a  plenary  meeting.  The  president  of  the  Supreme 
Court  is  the  president  of  the  State  Court.  For  deeds  which  are 
not  provided  for  in  the  criminal  code  the  punishment  will  be 
fixed  by  the  law  of  ministerial  responsibilities.  More  detailed 
directions  regarding  ministers'  responsibilities  are  to  be  em- 
bodied in  a  separate  law. 

Art.  94.  Administrative  authority  can  issue  ordinances  nec- 
essary for  the  application  of  the  law.  Administrative  author- 
ity may,  with  an  ordinance  of  legal  force,  regulate  conditions 
only  on  the  basis  of  lawful  authority,  which  is  to  govern  sepa- 
rately in  every  instance.  The  ordinances  must  not  be  contrary 
to  the  constitution  or  the  law  in  behalf  of  whose  application  they 
are  given.  They  cannot  be  contrary  to  the  legislative  provi- 
sions on  the  grounds  of  which  they  have  been  prescribed.  The 
National  Assembly  can  by  a  resolution  place  the  ordinances  is- 
sued by  the  authority  of  the  law  out  of  force  in  whole  or  part. 
The  ordinances  must  be  published  and  in  them  must  always 
be  indicated  the  law  on  the  ground  of  which  they  were  given. 

Art.  95.  The  administration  in  the  Kingdom  is  executed 
by  provinces,  districts,  counties,  and  municipalities.  Division 
of  governments  is  done  by  law,  in  accordance  with  natural 


JUGOSLAVIA  365 

social  and  economical  conditions.  A  province  can  have  at 
the  most  800,000  inhabitants.  Two  or  more  smaller  provinces 
can  unite  in  one  larger  one.  The  final  decision  rests  with  the 
provincial  conventions  of  the  said  provinces,  and  such  a  province 
cannot  have  more  than  800,000  inhabitants.  At  the  .head  of 
every  province  is  a  governor,  who  is  appointed  by  the  King  and 
governs  through  the  state's  agencies  the  affairs  of  the  state 
administration  in  the  province. 

Art.  96.  For  the  affairs  of  a  local  character  in  the  municipal- 
ities, counties,  districts,  and  provinces,  a  municipal,  county,  dis- 
trict, and  provincial  home  rule  is  established  and  organized  upon 
the  principle  of  elections.  For  the  home  rule  and  self-adminis- 
tration of  cities  a  special  law  will  be  enacted.  In  the  line  of 
provincial  home  rule  authorities  are  these  duties: 

(1)  Provincial  finances:  (a)  making  of  provincial  budget;  (b) 
disposition  of  provincial  taxation  which  is  payable  according 
to  law  to  cover  the  provincial  expenditures. 

(2)  Provincial  public  works;  also  building  laws. 

(3)  Attending  to  advancement  of  provincial  economic  inter- 
ests— farming,    stock    raising,    wine    growing,    fruit    growing, 
forestry,  river  and  lake  fishing,  hunting — as  well  as  technical 
and  agricultural  betterments. 

(4)  Administration  of  provincial  property. 

(5)  Supervision  of  the  national  health  in  the  province  and 
making  all  provisions  for  the  betterment  of  health  conditions 
in  the  province. 

(6)  Supervision  of  social  tasks  in  the  province. 

(7)  The  humanitarian  institutions  in  the  province. 

(8)  Transportation  institutions  in  the  province. 

(9)  Contributions   to   the   advancement  of   culture   in   the 
province. 

(10)  Contributions  to  special  education  in  the  province. 

(11)  Instituting  and  maintaining  organizations  for  savings, 
mutual  benefits,  and  insurance. 

(12)  Giving  opinions  at  the  request  of  the  Government  as  to 
the  advisability  of  proposed  laws  that  have  to  do  with  the  prov- 
ince and  in  general  in  all  other  objects  for  which  the  Govern- 
ment asks  their  opinion.     Other  matters  also  can  be  intrusted 
by  law  to  the  home  rule  authorities  of  the  province. 

If  in  some  of  the  enumerated  conditions  the  province  cannot 
perform  by  its  own  means,  the  Government  will,  upon  the  appli- 
cation of  the  provincial  assembly  and  according  to  the  decision 


366       NEW  CONSTITUTIONS  OF  EUROPE 

of  the  National  Assembly,  give  the  necessary  means,  or  will  it- 
self carry  out  the  undertakings. 

Art.  97.  Home  rule  units  have  their  own  yearly  budgets. 
The  administration  of  the  home  rule  units  is  under  the  super- 
vision of  the  minister  of  finances  and  the  supreme  controller, 
and  will  be  regulated  by  special  law. 

Art.  98.  Agencies  of  the  provincial  administration  are  the 
provincial  assembly  and  the  provincial  committee.  The  pro- 
vincial and  county  assemblies  elect  their  own  presidents,  who 
preside  at  their  meetings;  they  choose  also  the  local  provincial 
and  county  committees.  According  to  law,  with  exceptions, 
combined  authority  can  be  provided  for  the  same  objects  of 
state  and  home  rule  competence  in  the  province.  The  governor 
is  the  supreme  authority  of  the  general  state  administration  in 
the  province,  in  so  far  as  there  do  not  exist,  according  to  law, 
for  special  affairs  of  state,  special  administrative  authorities  for 
one  or  more  provinces.  The  law  provides  which  of  the  states' 
functions  are  decided  by  the  governor,  with  the  advice  of 
the  provincial  committee.  Detailed  regulations  regarding  or- 
ganization and  competent  home  rule  bodies,  of  municipality, 
county,  district,  and  province,  will  be  enacted  by  special  legis- 
lation. 

Art.  99.  The  provincial  assembly  has  the  right  to  establish 
provincial  regulations  in  all  questions  within  its  jurisdiction. 
Provincial  regulations  are  proclaimed  by  the  governor.  The 
provincial  governor  will  not  proclaim  regulations  which  he  finds 
are  not  based  upon  the  constitution  and  the  law.  In  that  case 
he  sends  such  regulations  with  his  opinion  to  the  State  Council 
for  decision  and  advises  the  competent  minister.  If  the  State 
Council  finds  that  the  order  is  not  based  on  the  constitution  or 
some  law,  it  will  not  be  proclaimed  or  published.  The  State 
Council  is  bound  to  make  its  decision  within  two  months.  K 
the  State  Council  does  not  make  the  decision  in  that  tune  it 
becomes  operative. 

Art.  100.  The  provincial  committee  prescribes  regulations 
for  performing  the  provincial  functions. 

Art.  101.  The  state  administrative  authorities  supervise 
the  activities  of  the  home  rule  authorities  through  the  provincial 
governor  and  other  special  organs.  The  provincial  governor 
has  the  power  to  suspend  the  enforcement  of  any  decision  of 
the  home  rule  officers  that  is  not  based  upon  the  constitution, 
the  law,  or  the  provincial  regulations.  A  complaint  can  be  filed 


JUGOSLAVIA  367 

against  the  decision  of  the  governor  with  the  State  Council, 
within  the  time  provided  by  law.  If  the  State  Council  renders 
no  decision  within  a  month  from  the  date  of  its  submission  then 
the  decision  of  the  provincial  governor  becomes  operative. 

Art.  102.  For  disagreements  of  an  administrative  nature 
administration  courts  are  established.  The  law  will  provide 
their  locality,  jurisdiction,  and  organization. 

Art.  103.  The  State  Council  is  the  Supreme  Administrative 
Court.  Members  of  the  State  Council  are  appointed  by  the  King 
on  the  motion  of  the  President  of  the  Council  of  Ministers  and 
in  the  following  manner:  One-half  of  the  members  are  named 
by  the  King  from  twice  the  number  of  names  submitted  by  the 
National  Assembly;  the  National  Assembly  elects  the  other  hah* 
from  a  like  number  and  in  a  like  manner  submitted  by  the  King. 
The  filling  of  vacant  places  in  the  State  Council  will  be  done  by 
especially  formulated  laws,  which  may  obviate  the  above  prin- 
ciples. For  members  of  the  State  Council  only  the  higher  public 
officials  or  men  in  public  life  who  have  a  higher  education  and 
have  been  for  ten  years  in  government  service  or  public  work 
can  be  appointed.  At  least  two-thirds  of  the  members  of  the 
State  Council  must  have  diplomas  of  qualification  as  having 
finished  law  studies.  Members  of  the  State  Council  can  be  re- 
moved from  their  places,  moved  to  other  branches  of  the  govern- 
ment service  and  placed  on  pension  only  upon  the  judgment  of 
the  court.  When  they  arrive  at  the  age  of  70  years  or  when 
through  illness  they  cannot  perform  their  duties,  they  will  be 
placed  on  pension. 

The  duties  of  the  State  Council  are:  (1)  As  the  Supreme  Ad- 
ministrative Court  it  decides  conflicts  of  an  administrative  na- 
ture. Conflicts  based  on  complaints  against  the  decrees  and 
ministerial  decisions  are  decided  by  the  State  Council  in  the 
first  and  last  instance.  (2)  As  the  administrative  organ  of  the 
supreme  state  administration  it  decides  acts  of  administrative 
nature  for  which  it  is  necessary  to  have  its  consent  by  special 
laws.  (3)  It  performs  supervising  duties  over  the  home  rule 
bodies  by  order  of  the  law.  (4)  It  decides  conflicts  of  jurisdic- 
tion between  the  state  and  the  administrative  authorities,  and 
also  decides  conflicts  of  jurisdiction  between  the  state  and  the 
home  rule  authorities.  (5)  It  also  decides  other  questions  that 
are  placed  by  the  law  in  its  jurisdiction.  Detailed  regulations 
regarding  the  composition  of  jurisdictions  and  procedure  in  the 
State  Council  will  be  prescribed  by  special  law. 


368       NEW  CONSTITUTIONS  OF  EUROPE 

Art.  104.  State  jurisdictions  are  established  by  and  accord- 
ing to  rules  prescribed  by  law. 

Art.  105.  The  law  will  prescribe  the  manner  in  which  the 
officials  will  be  appointed. 

Art.  106.  Professions  in  government  service,  rights  and 
duties,  salaries  and  pensions  of  government  officials  in  all 
branches,  will  be  regulated  by  law  for  officials. 

Art.  107.  Government  employees  are  agents  of  the  whole 
government  and  are  obliged  to  work  in  the  common  interest 
of  the  state.  The  use  of  authority  and  position  by  the  govern- 
ment employees  for  partisan  aims,  as  well  as  the  use  of  influence 
by  the  supervisors  of  government  employees  in  that  direction, 
will  be  punished  by  law. 

Art.  108.  Any  employee  who  is  guaranteed  a  permanent  posi- 
tion by  the  law  cannot  be  discharged  against  his  wish  without 
being  sentenced  by  a  regular  criminal  or  disciplinarian  court. 

SECTION  IX 
THE  COURTS'  AUTHORITY 

Art.  109.  The  courts  are  independent.  In  dealing  justice 
they  do  not  stand  under  any  authority,  but  administer  justice 
by  law.  Courts  and  court  jurisdictions  can  be  established  only 
by  law.  Under  no  circumstances  can  special  courts  be  estab- 
lished as  commissions  for  investigations.  In  family  and  in- 
heritance matters  of  the  Mohammedans,  justice  is  administered 
by  the  Sheriatha's  Courts  (religious). 

Art.  110.  For  the  entire  Kingdom  only  one  Supreme  Court 
exists,  with  sittings  at  Zagreb.  The  Supreme  Court  has  also 
authority  to  decide  conflicts  of  competency  between  adminis- 
trative, civil,  or  military  authorities  and  judicial  authorities. 
In  the  same  manner  it  is  competent  to  decide  conflicts  of  juris- 
diction between  administrative  and  regular  courts. 

Art.  111.  The  appointment  of  Supreme  and  Appellate  Court 
judges  and  the  presidents  of  lower  courts  is  done  by  the  King's 
decree  on  the  motion  of  the  minister  of  justice,  from  the  number 
of  candidates  which  are  chosen  by  the  nominating  body,  whose 
composition  will  be  closely  defined  by  law. 

Art.  112.  Judges  of  all  courts  are  permanent.  A  judge 
cannot  be  deprived  of  his  position  nor  for  any  reason  be  removed 
from  his  duty  against  his  will,  without  a  sentence  by  the  regular 
courts  or  the  Supreme  Court.  A  judge  cannot  be  accused  in 


JUGOSLAVIA  369 

respect  to  his  judicial  duty  without  the  permission  of  the  com- 
petent Appellate  Court.  For  members  of  the  higher  courts  this 
permission  is  given  by  the  Supreme  Court.  A  judge  cannot  be 
placed  even  temporarily  to  perform  any  other  paid  or  unpaid 
public  service,  without  his  consent  and  the  approval  of  the  Su- 
preme Court.  A  judge  can  be  transferred  only  by  his  own  con- 
sent. A  judge  can  be  in  service  to  the  end  of  his  65th  year,  and 
presidents  of  the  Supreme  and  Appellate  Courts  to  the  end 
of  their  70th  year.  Before  that  time  a  judge  can  be  placed  on 
pension  only  by  written  application  or  when  he  is  physically 
disabled  or  mentally  unable  to  perform  his  duties.  Decision 
as  to  pensioning  in  this  last  instance  is  given  by  the  Supreme 
Court. 

SECTION  x 

THE  GOVERNMENT  FINANCES 

Art.  113.  Every  year  the  National  Assembly  approves  the 
state  budget,  which  is  good  for  one  year.  The  budget  must 
be  submitted  to  the  National  Assembly  at  the  latest  one  month 
from  the  date  it  convenes.  At  the  same  time  with  the  budget 
must  be  submitted  to  the  National  Assembly  for  examination 
and  approval  the  final  report  for  the  last  past  fiscal  year.  The 
National  Assembly  cannot  increase  the  submitted  items,  but  it 
can  lower  or  omit  them.  The  budget  is  approved  by  sections. 
The  form  of  making  and  executing  of  the  budget  is  prescribed 
by  law.  Saving  from  one  item  of  the  budget  or  of  the  budget 
year  cannot  be  used  for  payment  of  other  items  or  for  another 
year,  without  the  consent  of  the  National  Assembly. 

Art.  114.  Until  it  has  approved  the  submitted  budget  the 
National  Assembly  can  approve  one-twelfth  of  the  budget  for 
one  or  more  months.  If  the  National  Assembly  is  adjourned 
before  the  budget  is  decided,  the  budget  of  the  expiring  fiscal 
year  is  prolonged  by  decree,  at  the  longest  for  four  months. 

Art.  115.  Government  taxes  and  general  government  in- 
comes are  regulated  by  law.  State  loans  are  decided  by  Na- 
tional Assembly.  The  Government  is  obliged  to  submit  to  the 
National  Assembly  a  true  certified  report  approved  by  the  su- 
preme controller  if  the  agreement  for  the  loan  is  made  and  exe- 
cuted according  to  law. 

Art.  116.  Tax  obligations  are  general  and  all  the  government 
taxes  are  equal  for  the  entire  country.  Taxes  are  paid  according 
to  taxable  capacity  and  progressively.  The  King  and  the  heir  to 


370       NEW  CONSTITUTIONS  OF  EUROPE 

the  throne  pay  government  tax  on  private  property.  No  aid, 
permanent  or  temporary,  nor  gifts  or  compensation,  can  be  given 
out  of  the  government's  treasury  if  they  are  not  based  on  the  law. 

Art.  117.  The  minister  of  finance  directs  the  state  property 
in  so  far  as  the  law  does  not  provide  otherwise.  Special  laws 
will  be  enacted  for  the  disposal  of  government  property.  The 
right  of  monopoly  appertains  to  the  state.  Minerals  and  nat- 
ural water  powers  are  property  of  the  state.  Special  laws  will 
be  enacted  for  the  giving  of  mining,  industrial,  or  any  other 
concessions. 

Art.  118.  For  auditing  state  accounts  and  supervising  the 
execution  of  state  and  provincial  budgets  there  exists  a  chief 
controller  as  the  supreme  accounting  court.  The  president  and 
members  of  the  supreme  control  are  chosen  by  the  National 
Assembly  from  the  nominating  list,  which  is  arranged  by  the 
State  Council  and  on  which  there  are  nominated  twice  as  many 
candidates  as  there  are  vacant  places.  The  president  and  one- 
half  of  the  members  of  the  supreme  control  must  be  jurists. 
Other  members  must  have  been  ministers  of  finance  or  they  must 
have  ten  years  of  executive  financial  service.  The  president 
and  members  of  the  supreme  control  enjoy  the  same  right  of 
being  irremovable  as  the  members  of  State  Council.  Detailed 
regulations  as  to  construction  and  competent  procedure  of  the 
supreme  control  will  be  enacted  by  separate  law.  In  what 
cases,  against  the  decision  of  the  supreme  control,  a  complaint 
to  the  Supreme  Court  will  have  a  place  will  be  decided  by  law. 
The  supreme  control  inspects,  corrects,  and  liquidates  accounts 
of  general  administration  and  of  all  those  obliged  to  render  ac- 
counts to  the  state  treasury.  It  sees  that  no  expenditures  are 
made  in  excess  of  the  budget  and  that  no  part  of  the  budget 
is  transferred  from  one  section  of  the  budget  to  the  other.  It 
closes  the  accounts  of  all  state  administrations  and  is  obliged  to 
collect  all  necessary  evidence  and  information.  Final  state  ac- 
counts are  submitted  to  the  National  Assembly  for  approval 
with  remarks  of  the  supreme  controller,  and  that,  at  the  latest, 
within  one  year,  counting  from  the  end  of  each  fiscal  year. 

SECTION  XI 
THE  ARMY 

Art.  119.  Military  service  is  general  as  prescribed  by  law. 
The  organization  and  strength  of  the  army  and  navy  are  also 


JUGOSLAVIA  371 

prescribed  by  law.  The  formation  of  units  is  ordered  by  the 
King  at  the  suggestion  of  the  minister  of  war  and  the  navy. 
The  size  of  the  standing  army  shall  be  determined  each  year  at 
the  time  of  making  the  budget. 

Art.  120.  Military  courts  are  independent.  In  the  execu- 
tion of  justice  they  are  under  no  other  authority,  but  their  judg- 
ments shall  be  according  to  law.  Judges  of  the  military  court 
of  appeals  are  appointed  for  life.  The  tenure  of  office  of  judges 
of  the  first-instance  military  courts  will  be  prescribed  by  law. 
Judges  of  the  first-instance  military  courts  cannot  be  im- 
peached for  their  judicial  acts  without  the  sanction  of  the  mili- 
tary court  of  appeals,  nor  judges  of  the  appellate  court  without 
the  consent  of  the  Supreme  Court.  Judges  of  the  military  court 
of  appeals  may  be  transferred  only  at  their  own  request  or  if 
elevated  to  a  higher  office  and  judges  of  the  first-instance  mili- 
tary courts  according  to  law.  The  findings  of  the  military 
courts  are  to  be  reviewed  by  the  Supreme  Court  as  the  court  of 
last  resort. 

Art.  121.  Law  violations  committed  by  citizens  and  soldiers 
together  will  be  tried  before  civil  tribunals,  except  in  time  of 
war,  when  they  will  be  tried  by  military  courts. 

Art.  122.  No  one  over  20  years  of  age  shall  be  eligible  to 
appointment  under  the  government  or  remain  in  the  same  un- 
less he  has  complied  with  the  rules  of  the  military  authorities 
as  to  military  service  performed  or  has  been  exempted  from  such 
service  by  the  same  authorities. 

Art.  123.  The  army  can  be  employed  for  the  preserving  of 
law  and  order  in  local  affairs  only  upon  the  request  of  local 
authorities. 

Art.  124.  Aliens  shall  not  be  recruited  as  soldiers  of  the  na- 
tion, nor  can  the  army  of  the  nation  be  placed  in  the  service  of 
any  other  nation  without  having  previously  obtained  the  sanc- 
tion of  the  National  Assembly. 

SECTION  xn 
AMENDMENTS  TO  THE  CONSTITUTION 

Art.  125.  Amendments  to  the  constitution  shall  be  made  by 
the  National  Assembly  with  the  consent  of  the  King. 

Art.  126.  Motions  to  amend  or  alter  the  constitution  shall  be 
made  by  the  King  and  the  National  Assembly.  When  such  a  mo- 
tion to  amend  or  alter  the  constitution  is  made,  all  such  amend- 


372       NEW  CONSTITUTIONS  OF  EUROPE 

ments  or  changes  must  be  presented  in  writing.  If  the  motion 
to  amend  is  made  by  the  King  it  will  be  communicated  to  the 
National  Assembly  and  the  National  Assembly  will  then  adjourn 
and  a  new  one  will  be  called  at  the  latest  within  four  months. 
If  such  a  motion  is  introduced  by  the  National  Assembly  it  shall 
be  enacted  in  the  manner  contemplated  for  the  solution  of  statu- 
tory laws  by  a  three-fifths  majority  vote  of  the  entire  member- 
ship. When  such  a  motion  is  passed  the  National  Assembly 
will  be  dissolved  and  a  new  one  shall  be  called  within  four 
months  of  the  passage  of  such  motion.  In  either  event  the  Na- 
tional Assembly  can  only  discuss  the  amendments  or  changes  in 
the  constitution  as  per  original  call.  The  vote  of  the  National 
Assembly  shall  be  based  on  a  majority  of  one-half,  plus  one,  of 
the  total  number  of  its  membership. 

Art.  127.  In  the  event  of  war  or  general  mobilization,  the 
National  Assembly  may  for  the  whole  of  the  national  territory, 
or  in  the  case  of  armed  insurrection  for  the  insurgent  district, 
enact  temporary  emergency  laws  abrogating  the  following  rights 
of  citizens :  The  right  of  assembly,  free  speech,  liberty  of  move- 
ment, immunity  of  domicile,  correspondence,  and  telegraphic 
communication.  In  the  same  manner  the  freedom  of  the  press 
may  be  abridged  in  case  of  armed  insurrection  in  the  district 
so  affected. 

SECTION  XIII 
GENERAL  INSTRUCTIONS 

Art.  128.  At  the  first  meeting  of  the  National  Assembly  after 
the  proclamation  of  the  constitution  the  heir  to  the  throne, 
Alexander,  as  the  representative  of  King  Peter  I,  as  per  Article 
58  of  the  constitution,  will  take  the  following  oath : 

"In  the  name  of  his  majesty  King  Peter  I,  I  swear  before  the 
Almighty  God  that  I  will  uphold  the  constitution  without  any 
mental  reservations,  that  I  will  rule  by  it  and  by  the  laws,  that 
I  will  safeguard  the  liberties  of  the  people,  the  independence 
of  the  state  and  the  entity  of  the  national  authorities,  and  that 
in  all  my  actions  and  deeds  I  will  have  before  me  the  welfare  of 
the  people.  So  help  me  God.  Amen." 

Art.  129.  After  this  each  of  the  national  representatives  in 
meeting  assembled  and  before  the  speaker  of  the  house  will  take 
the  following  oath : 

"I  [name]  swear  before  the  Almighty  God  and  all  that  is 


JUGOSLAVIA  373 

under  the  law  most  sacred  to  me  and  in  this  world  the  most 
precious  that  I  will  in  the  discharge  of  my  legislative  duties  have 
the  welfare  of  the  nation  before  me  as  the  paramount  issue  and 
will  fulfill  my  duties  that  the  welfare  of  the  king  and  people 
and  the  sovereignty  of  the  nation  may  be  executed  to  the  best 
of  my  knowledge  and  belief." 

Art.  130.  Temporary  laws,  rules,  regulations,  and  findings 
of  the  Council  of  Ministers  and  all  other  acts  and  decisions  of  a 
definite  duration  which  are  of  a  statutory  nature  are  in  force 
from  Dec.  1,  1918,  until  the  day  of  the  proclamation  of  this  con- 
stitution; said  laws  will  be  in  force  until  they  are  amended  or 
repealed.  Within  thirty  days  from  the  promulgation  of  the 
constitution  it  will  be  the  duty  of  the  Government  to  give  to  the 
legislative  body  for  examination  all  such  provisional  laws,  rules, 
regulations,  statutes,  and  decisions.  The  committee,  divided 
into  sections  according  to  the  branch  of  the  national  adminis- 
tration, after  passing  upon  them,  will  pass  in  committee  of  the 
whole  on  which  of  said  laws  shall  remain  in  force  without  change, 
which  are  to  be  amended,  and  which  repealed.  The  unreported 
temporary  laws,  rules,  regulations,  and  decisions  of  the  Council 
of  Ministers  and  all  other  acts  and  laws  of  a  temporary  legal 
nature  are  hereby  repealed.  The  findings  of  the  committee 
will  be  proclaimed  as  law.  Those  upon  which  the  committee 
does  not  report  will  remain  in  full  force  until  such  time  as  they 
are  changed  in  the  regular  legislative  manner.  All  temporary 
laws,  rules,  statutes,  and  decisions  which  are  of  a  legal  nature 
of  the  Ministerial  Council  with  reference  to  the  agrarian  problem 
of  the  nation,  the  national  banks  of  the  Serbs,  Croats,  and 
Slovenes,  and  the  liquidation  of  the  moratorium,  liquidation  of 
the  legal  status  created  by  the  war,  and  the  reparation  for  dam- 
ages caused  by  the  war,  rules  pertaining  to  the  loan  and  the  sim- 
plifying of  the  judiciary,  can  only  be  changed  in  a  legislative 
manner. 

Art.  131.  Until  such  time  as  the  constitution  goes  into  effect 
the  administration  of  the  Ministry,  of  the  National  Council,  of 
the  supreme  control,  of  the  rules  of  order  in  the  National  Council 
and  of  the  ministerial  responsibilities,  the  laws  now  existing  in 
the  Kingdom  of  Serbia  are  hereby  extended  to  the  rest  of  the 
country,  with  such  amendments  and  additions  as  will  be  enacted 
in  the  manner  as  prescribed  in  Article  133. 

Art.  132.  In  accordance  with  Article  57  of  this  constitution, 
until  the  new  statutes  are  in  force  the  ones  enacted  by  order  of 


374       NEW  CONSTITUTIONS  OF  EUROPE 

the  King  on  Aug.  30, 1909,  and  published  in  the  "Serbian  Press" 
Feb.  26,  1911,  will  be  in  effect. 

Art.  133.  For  the  equalization  and  administration  of  the 
laws  in  the  land  a  shorter  method  is  the  following:  All  legal 
motions  which  have  as  their  basis  the  coordination  of  laws  and 
administration  will  be  introduced  either  by  the  Government  or 
by  individual  representatives  to  the  legislative  committee 
through  its  chairman.  The  report  of  the  legislative  committee 
relative  to  the  motion  which  the  committee  has  adopted  is  sent 
to  the  National  Assembly  for  final  action.  Of  these  legal  mo- 
tions the  Assembly  votes  the  bill  in  its  entirety  with  a  roll-call 
vote  and  first  reading  before  the  full  house,  whether  they  are 
passed  or  rejected.  Before  voting  is  in  order,  one  representative 
from  each  parliamentary  group  may  address  the  house  upon 
the  motion  with  a  limited  speech.  Such  a  shorter  method  for 
the  uniformity  of  legislation  and  administration  in  the  nation 
may  be  for  five  years  from  the  time  that  this  constitution  goes 
into  effect,  but  such  time  may  be  extended  legally.  During 
the  sitting  of  the  Constituent  Assembly  as  a  legislative  body 
the  constitutional  committee  will  fulfill  the  duties  of  the  legisla- 
tive committee. 

Art.  134.  After  the  constitution  goes  into  effect  the  present 
provisional  authorities  will  remain  as  such  temporarily,  each 
writh  a  provisional  governor  named  by  the  King  on  the  recom- 
mendation of  the  minister  of  the  interior.  The  provisional 
governor  will  administer  the  province  through  and  with  the 
chiefs  of  the  department  and  under  the  immediate  supervision 
of  the  minister  of  the  interior  and  as  the  agent  of  competent 
ministers,  and  upon  the  basis  of  the  existing  laws  and  regulations. 
Laws  enacted  after  this  constitution  goes  into  effect  shall  not 
give  the  provisional  administration  new  duties.  In  the  gradual 
transfer  of  the  affairs  of  the  administration  of  the  provinces  to 
the  several  ministries  and  authorities  as  per  rules  issued  in  Arti- 
cle 135,  the  Council  of  Ministers  after  due  representation  from 
the  provisional  governor  will  decide.  As  long  as  the  provisional 
administration  is  in  force  the  bureaus  of  the  several  ministries 
in  the  provinces  are  bound  to  confer  and  learn  the  views  of  the 
province's  representatives  as  to  their  bills  which  are  of  a  general 
character  or  that  have  any  bearing  on  civil  service  employees 
before  the  ministerial  decision.  The  parties  have  the  right  to 
be  heard  before  the  National  Council  relative  to  administrative 
contentions,  which  are  decided  by  the  temporary  provisional 


JUGOSLAVIA  375 

administration  as  the  first  and  last.  For  this  duty  the  National 
Council  will  prepare  whatever  is  necessary.  Administrative  con- 
tention may  exist  only  between  a  private  individual  or  a  person 
of  the  legal  calling  on  the  one  side  and  the  administrative  author- 
ities on  the  other;  and  it  exists  then  where  through  an  order  or 
decision  of  the  administrative  authorities  the  rights  of  the  pri- 
vate individual  or  of  the  individual  of  the  legal  calling  are  inter- 
fered with  in  contravention  of  law.  However,  the  issue  will  not 
arise  in  cases  where  the  law  has  provided  that  the  provincial  or 
district  authorities  shall  proceed,  consider,  or  decide  the  case. 
Art.  135.  The  government  law  relating  to  the  division  of 
the  land  into  provinces  and  the  regulation  of  provinces  as  per 
Articles  95  and  96,  as  well  as  the  transfer  of  the  present  provin- 
cial sovereignty  to  the  ministry  and  provincial  administrations 
as  per  Article  134,  shall  be  brought  by  the  government  before 
the  National  Assembly  for  passage.  If  the  National  Assembly 
does  not  pass  these  laws  within  three  months  they  will  be  brought 
up  according  to  Article  133  for  the  uniformity  of  the  code  and 
administration  of  the  land,  and  if  even  after  this  shorter  method 
these  laws  are  not  enacted  within  two  months,  then  the  Crown 
will  issue  an  order  whereby  the  land  shall  be  divided  within  one 
month,  together  with  the  apportionments  on  the  provincial  ad- 
ministration as  per  Articles  95  and  96  of  the  constitution.  This 
order  may  be  changed  only  by  legislative  action.  If  the  division 
of  the  land  is  not  accomplished  either  according  to  the  first  or 
second  part  of  this  Article,  but  according  to  the  third,  then  there 
shall  be  established  in  Croatia  and  Slovenia  four  administrative 
authorities.  If  a  division  of  the  land  is  to  be  carried  out  accord- 
ing to  the  resolutions  of  this  Article  then  Montenegro,  within 
the  frontiers  of  1913,  with  the  Bokokotorski  district,  but  without 
the  districts  of  Plevlja  and  Belopolje,  shall  be  considered  as  one 
department  and  will  be  administered  by  the  provincial  authori- 
ties as  per  this  constitution.  With  the  law  of  the  division  of 
authority  Bosnia  and  Herzegovina  will  be  divided  in  authority 
in  their  present  borders.  Until  the  passage  of  such  a  law  the 
counties  in  Bosnia  and  Herzegovina  will  be  considered  as  the 
de  facto  authority.  The  amalgamation  of  these  authorities 
will  be  accomplished  by  the  decision  of  the  provincial  assemblies 
of  the  said  provinces  and  carried  by  a  majority  of  two-thirds 
votes,  according  to  the  provision  in  the  third  section  of  Article 
95  of  the  constitution.  Each  municipality  or  district  may 
secede  from  its  present  allegiance  and  join  a  different  municipal 


376       NEW  CONSTITUTIONS  OF  EUROPE 

authority  in  the  present  borders  of  Bosnia  and  Herzegovina 
or  outside  of  them  if  that  is  accepted  by  their  self-governing 
representatives  by  a  vote  of  three-fifths,  and  if  such  a  decision 
is  authorized  by  the  National  Assembly.  The  counties  will  re- 
main as  units  of  the  national  administration  until  such  time  as 
they  are  abolished  by  law;  their  authority  will  be  regulated  by 
law.  The  self-governing  districts  will  terminate  their  admin- 
istration in  the  interest  of  the  provincial  and  county  districts 
as  soon  as  the  organization  of  the  departments  is  completed. 

Art.  136.  Until  the  new  law  affecting  the  employees  (govern- 
ment officials),  as  per  Article  106  of  the  constitution,  the  laws 
now  in  effect  shall  be  the  law  governing  their  duties  and  rights. 
The  new  law  shall  embody  the  temporary  orders  with  the  object 
of  revision  and  coordination  of  the  personnel  of  the  administra- 
tive officials  and  must  be  brought  up  for  action  not  later  than 
two  years  after  the  passage  of  the  constitution,  by  which  time 
the  revision  and  coordination  of  the  government  officials  must 
be  completed. 

Art.  137.  The  president  of  tribunals  (chief  justices)  and  all 
other  judges  whose  appointment  under  the  constitution  or  the 
statutes  is  of  a  permanent  nature  shall  not  be  removed,  but  they 
will  retain  their  positions  and  fulfill  their  duties  in  the  judiciary 
as  heretofore.  In  the  other  parts  of  the  nation,  except  what 
was  originally  Serbia  proper,  the  tenure  of  office  of  individual 
judges  may  be  terminated  within  one  year  from  the  enactment 
of  this  constitution.  In  that  time  the  minister  of  justice  will 
form  the  commissions  of  the  higher  tribunals  of  these  districts 
and  together  they  will  decide  which  of  the  judges  are  to  be  con- 
sidered as  not  coming  under  the  provision  of  the  law  excluding 
them  from  the  permanent  tenure  of  office.  The  necessary 
filling  of  the  places  thus  made  vacant  by  chief  justices  and  other 
judges  will  be  done  according  to  the  statutes  now  existing. 
Judges  who  were  or  will  be  appointed  under  the  provision  of  the 
statutes  for  temporary  appointment  to  official  positions  during 
the  war,  or  under  any  other  law  or  ordinance,  are  directed 
within  one  and  one-half  years  from  the  enactment  of  this  con- 
stitution to  take  the  examination  for  judges.  Those  who  fail 
to  do  so  in  the  prescribed  time  will  by  such  failure  forfeit  their 
positions.  The  Supreme  Court  of  Beograd  (Belgrade),  the 
court  of  seven  in  Zagreb,  the  high  court  of  Sarajevo,  the  high 
court  of  Podgoriza  and  the  branch  of  the  Supreme  Court  of 
Novi  Sad  will  function  as  heretofore  until  the  formation  of  the 


JUGOSLAVIA  377 

Supreme  Court  for  the  whole  nation.  In  the  interim  they  will 
be  considered  as  branches  of  the  Supreme  Court. 

Art.  138.  The  publication  and  distribution  of  newspapers 
and  printed  matter  may  be  prohibited  which  advocate  hatred 
toward  the  government  as  a  whole,  religious  or  class  hatred, 
and  also  when  they  appeal  to  the  citizenry  to  resort  to  violence 
having  for  its  object  the  overthrow  of  the  constitution  or  the 
laws  of  the  land  by  force,  if  from  the  contents  it  is  plainly  im- 
plied that  the  intent  is  to  bring  about  such  overthrow  by  citi- 
zenry. Section  13,  Article  3,  of  the  law  as  to  the  enforcement  of 
the  prohibition  is  valid  in  this  instance.  When  the  necessity 
for  these  measures  ceases  to  exist  these  laws  may  be  repealed 
in  the  legal  way. 

Art.  139.  Until  such  time  as  a  law  is  enacted  relative  to 
privileges  (grants  or  concessions)  as  to  Article  117  of  the  consti- 
tution, all  such  privileges  (grants  or  concessions)  until  the  time 
of  the  enactment  of  the  constitution  shall  be  revised  in  the  man- 
ner as  provided  in  Article  133  of  the  constitution.  The  privilege 
for  the  clearing  of  the  national  forests  shall  be  revised  in  so  far  as 
the  price  (or  tax)  shall  have  retroactive  value  from  Dec.  1,  1918. 

Art.  140.  When  this  constitution  becomes  effective  the  Con- 
stituent Assembly,  elected  on  the  28th  day  of  November, 
1920,  automatically  (ipso  facto)  becomes  the  regular  legislative 
assembly,  with  a  definite  time  for  its  sittings  as  provided  in 
the  election  laws  for  the  Constituent  Assembly. 

Art.  141.  Until  such  time  as  a  new  code  is  enacted  relative 
to  the  election  of  national  representatives  the  law  under  which 
the  election  of  November,  1920,  was  held  shall  be  held  valid, 
with  the  changes  which  shall  be  brought  in  harmony  with  the 
constitution.  These  changes  will  be  brought  in  the  manner  as 
contemplated  in  Article  133  of  this  constitution  and  will  become 
valid  when  they  receive  the  King's  sanction.  The  committee 
may  make  the  necessary  changes  in  terms  which  the  law  con- 
templates, and  besides  that  it  is  empowered  to  prescribe  the 
manner  in  which  the  division  of  the  mandates  shall  be  made  on 
each  list  of  candidates  according  to  the  number  of  voters. 

SECTION  xiv 
FINAL  RULES 

Art.  142.  This  constitution  with  the  orders  becomes  a  law 
when  it  is  countersigned  by  the  King,  and  it  gets  its  binding 


378       NEW  CONSTITUTIONS  OF  EUROPE 

strength  when  it  is  published  in  the  "official  organs."  From 
that  day  all  other  laws  or  regulations  which  are  contrary  to  it 
are  hereby  revoked.  For  the  execution  of  this  constitution  the 
President  and  all  the  ministers  of  the  Ministerial  Council  shall 
be  responsible.  We  recommend  to  the  ministers  that  this  con- 
stitution be  given  publicity  and  to  see  that  it  is  carried  out. 
To  the  authorities,  then,  we  command  that  they  shall  govern 
according  to  it  and  to  all  and  everybody  to  obey  it. 

(Signed)  ALEXANDER. 
June  28,  1921,  in  Beograd  (Belgrade). 


CHAPTER  XV 
RUSSIA 

1.  HISTORICAL  NOTE 

THE  most  striking  political  changes  due  to  the  war  have 
taken  place  in  Russia.  The  most  reactionary  govern- 
ment in  Europe  has  become  the  most  radical.  A  com- 
munist state  has  been  set  up  and  political  and  industrial 
organization  have  been  united  in  a  manner  that  has  never 
been  tried  before.  For  the  last  five  years  there  has  been 
a  steady  stream  of  volumes  dealing  with  the  Russian 
Revolution:  soldiers,  newspaper  correspondents,  college 
professors,  Czarists,  Bolsheviki,  governesses,  novelists, 
and  sculptresses  have  contributed  accounts  of  their  prej- 
udices and  observations.  The  result  is  obscurity  as  to  the 
chain  of  events  that  marked  the  transformation  from  the 
old  to  the  new  regime,  and  as  to  the  manner  in  which  the 
new  regime  is  working.  Violent  controversies  over  facts 
are  available;  but  there  are  few  if  any  trustworthy  dis- 
cussions of  one  of  the  most  interesting  and  important 
political  experiments  that  the  world  has  ever  seen. 

There  is  no  adequate  history  of  the  beginnings  of  the 
socialist  democratic  movement  hi  Russia.  Before  the 
revolution  of  March,  1917,  the  censorship  was  so  strict 
that  most  of  the  reliable  literature  on  socialist  agitation 
was  subterranean.  Prior  to  1898  there  was  no  serious  at- 
tempt to  form  an  all-Russian  socialist  organization.  In 
that  year,  however,  the  various  groups  met  at  Minsk  and 
joined  in  a  single  organization  to  be  known  as  the  Rus- 
sian Socialist  Democratic  Labor  Party.  The  organization 
made  great  progress;  its  branches  were  rapidly  increased; 

879 


Literature 
of  the  Rus- 
sian Revolu- 
tion of  1917 


Socialist 
Democratic 
Labor  Party, 
1898 


380       NEW  CONSTITUTIONS  OF  EUROPE 

it  was  probably  true  that  "every  workingman's  vote  in 
Russia  was  cast  for  Socialism,"1  a  situation  that  was  not 
duplicated  in  any  other  country. 

The  second  congress  of  the  party  was  held  in  Brussels 
and  London  in  July  and  August,  1903,  and  radical  differ- 
ences of  opinion  developed. 

Origin  of  One  party,  headed  by  Lenin,  demanded  a  more  thorough  cen- 

term  "Bol-       tralization  of  power  in  the  hands  of  the  Executive  Committee,  a 
sheviki"  rigorous  suppression  of  all  independent  activities,  and  a  severer 

code  of  rules  for  membership  of  the  party.  The  other  group, 
led  by  Martoff,  defended  the  democratic  principle  of  organiza- 
tion and  desired  a  further  development  of  independence  on  the 
part  of  the  local  organizations.  Further  differences  of  opinion 
existed  regarding  the  policy  to  be  adopted  in  the  event  of  a 
successful  revolution.  The  supporters  of  the  Martoff  group 
were  prepared  to  concede  to  the  Liberal  bourgeoisie  at  any  rate 
a  temporary  justification  of  their  existence,  but  Lenin  main- 
tained that  the  overthrow  of  Tsardom  by  the  aid  of  the  bour- 
geoisie and  the  establishment  of  a  democratic  republic  would 
not  only  [not?]  weaken  the  domination  of  the  capitalists  but 
would  actually  increase  it.  These  differences  of  opinion  led  to 
a  definite  breach  and  as,  at  this  particular  Congress,  the  majority 
or  "  bolshinstvo  "  of  the  delegates  voted  with  Lenin,  they  were 
known  subsequently  as  the  "bolsheviki"  while  the  minority 
or  "menshinstvo"  were  labelled  "mensheviki."  This  is  the 
real  origin  of  the  Bolsheviks  and,  although  the  word  "Bolshe- 
vism," which  has  been  created  to  describe  the  doctrine  of  the 
Bolsheviks  has  an  entirely  different  signification, "Bolshevik" 
in  its  original  sense  has  no  further  meaning  than  that  which  has 
just  been  explained.2 


The  revolu- 
tion of 
1905 


The  two  wings  remained  apart  during  the  revolution 
of  1905  when  public  disorders  were  so  serious  that  the 
Czar  was  compelled  to  convoke  a  national  assembly.3 
There  was,  however,  no  approach  to  parliamentary  govern- 

lBolshevik  Aims  and  Ideals,  p.  9  (New  York,  1919;  a  reprint  of  articles  from 
The  Round  Table,  March  and  June,  1919). 

*Ibid.,pp.  10-11. 

'See  E.  A.  Goldenweiser,  "The  Russian  Duma,"  Political  Science  Quarterly, 
September,  1914;  S.  N.  Harper,  The  New  Electoral  Law  for  the  Russian  Duma 
(Chicago,  1908);  Paul  Vinogradoff,  Self  Government  in  Russia  (London,  1915). 


RUSSIA 


381 


ment.  Revolutionary  agitation  continued  in  spite  of  the 
censorship  and  police  suppression ;  and  the  different  parties 
opposing  the  autocracy  of  the  Czar's  regime  squandered 
some  of  their  strength  in  factional  struggles  among  them- 
selves. Then  came  the  war;  and  the  mystery  is  that  the 
government  lasted  as  long  as  it  did.  It  was  stupid  and 
corrupt;  demands  for  extensions  of  the  franchise  were  re- 
fused; repressive  measures  engendered  further  popular 
discontent;  high  officials  were  in  league  with  the  enemy; 
the  war  and  its  professed  purposes  were  not  popular  with 
the  masses;  and  the  court  was  dominated  by  the  fanatic 
Rasputin.  The  result  was  the  revolution  of  March,  1917.1 
A  provisional  government  which  was  liberal  rather  than 
socialist  and  aimed  at  middle-class  rule  lasted  until  Novem- 
ber, 1917,  when  the  Bolsheviki  came  into  power.2 

Entirely  apart  from  the  economic  philosophy  of  Bol- 
shevism the  new  regime  in  Russia  is  of  great  significance 
in  the  development  of  representative  institutions;  for, 
as  has  already  been  said,  the  constitution  links  political 
and  municipal  with  industrial  organization.  The  seizure 
of  political  power  by  the  Bolsheviki  in  November,  1917, 
was  simply  a  military  coup  d'6tat.  Trotsky  announced 
that  "Kerensky's  government  no  longer  existed  and  that, 
pending  the  decision  of  the  All-Russian  Congress  of  So- 
viets, the  government  authority  would  be  assumed  by  the 
Military  Revolutionary  Committee."  The  Constituent 
Assembly,  which  had  been  elected  in  November,  1917,  was 
dissolved  in  January,  1918,  because,  in  spite  of  the  fact 
that  the  leaders  of  the  middle-class  Liberals  had  been 
arrested  and  other  measures  of  repression  taken,  an  anti- 
Bolshevik  candidate  was  elected  to  the  presidency  of  the 

iQn  the  facts  of  the  revolution,  which  are  still  obscure,  see  Dillon,  The  Eclipse 
of  Russia  (London,  1918);  Kerennky,  The  Prelude  to  Bolshevism  (New  York, 
1919);  Olgin,  The  Soul  of  the  Russian  Revolution  (New  York,  1917);  and  Levine, 
The  Russian  Revolution  (New  York,  1917). 

«See  Vandervelde,  Three  Aspects  of  the  Russian  Revolution  (New  York,  1919); 
Goode,  Bolshevism  at  Work  (New  York,  1920);  Trotsky,  Our  ^ew/i^on  (New 
York,  1918);  Russell,  Bolshevism  in  Theory  and  Practice  (New  York,  1920). 


The  revolu- 
tion of  1917 


Bolshevist 
coup  d'&tat 
November, 
1917 


Constituent 

Assembly 

dissolved 


382       NEW  CONSTITUTIONS  OF  EUROPE 


Origin  of 
Soviet  idea 


Constitution 
of  1918 


Assembly,  and  a  series  of  anti-Bolshevik  resolutions  were 
carried.  The  Assembly  was,  therefore,  abandoned,  and 
the  Bolsheviki  relied  for  their  support  on  the  Soviets  or 
Councils  of  Workmen's,  Peasants',  and  Soldiers'  Deputies. 
These  bodies,  containing  no  representatives  of  the  middle 
classes,  were  lured  by  the  revolutionary  battle-cry,  "All 
Power  to  the  Soviets." 

The  Soviet  idea  may  be  said  to  have  originated  in  Eng- 
land. One  of  the  followers  of  Robert  Owen  produced 
a  plan  for  "a  new  set  of  boroughs  when  the  unions  are  or- 
ganized: every  trade  shall  be  a  borough  and  every  trade 
shall  have  a  council  of  representatives  to  conduct  its  af- 
fairs." But  the  Grand  National  Consolidated  Trades 
Union  which  Owen  headed  collapsed.  So  also  the  Lux- 
embourg Commission  (1848)  elected  by  the  various  trades 
from  the  workshops  to  represent  the  Paris  proletariat,  was 
but  a  flash  in  the  pan.1  The  Soviet  did  not  emerge  until 
the  Russian  revolution  of  1905,  when  the  Soviets  came 
into  being  more  or  less  spontaneously.  They  were  in  es- 
sence strike  committees  employed  to  bring  pressure  to  bear 
upon  the  government  to  grant  parliamentary  institutions. 
They  vanished  almost  at  once  with  the  reaction,  only  to 
reappear,  however,  early  in  1917.  At  first  they  were  under 
a  moderate  Socialist  influence;  but  Lenin  was  quick  to  see 
their  possibilities,  and  by  the  time  of  the  November 
revolution,  the  Bolsheviki  had  control  of  the  Petrograd 
and  Moscow  Soviets.  The  meeting  of  the  First  Con- 
gress of  Soviets  in  Petrograd  on  November  7  was  made 
the  occasion  of  the  Bolshevist  coup.  The  Third  All- 
Russian  Congress  of  Soviets  proclaimed  the  Russian  So- 
cialist Federated  Soviet  Republic.  The  Fifth  All-Russian 
Congress  of  Soviets  adopted  a  constitution  in  July, 
1918. 

The  Soviet  Government  is  extremely  complicated,  as  the 
constitution  and  the  accompanying  chart  will  indicate. 

'See  R.  W.  Postgate,  The  Bolshevik  Theory,  p.  132  ff.  (London,  1920). 


Workshops    Workshops 

M  // 


Village  Meetings  and  Soviets 

\1        - 

* it'y 


Volost  Soviet 
Soviet) 


Oblast. 
ional  Congress) 


GOVERNMENTAL  ORGANIZATION  OF  THE  RUSSIAN  SOCIALIST 
FEDERATED  SOVIET  REPUBLIC1 

JFrom  R.  W.  Postgate,  The  Bolshevik  Theory,  p.  146  (London,  1920). 


S83 


Dictatorship 
of  a  minor- 
ity 


Occupa- 
tional repre- 
sentation 


384       NEW  CONSTITUTIONS  OF  EUROPE 

The  bourgeois  elements  of  the  population  are  completely 
disfranchised.  Though  kept  in  power  by  the  acquiescence 
of  the  peasants,  the  Bolshevist  government  does  not  trust 
the  peasants,  and  the  Soviet  hierarchy  is  so  arranged 
that  their  vote  counts  for  only  one-fifth  of  its  numerical 
strength.1  The  controlling  organs  are  not  in  touch  with 
the  people  since  they  result  from  a  series  of  indirect  elec- 
tions "so  complicated  as  to  need  a  genealogical  tree  to 
make  them  intelligible."2  The  Communists,  nevertheless, 
remain  in  control:  a  party  of  600,000  members,  only  a 
fraction  of  whom  are  active,  maintains  a  dictatorship 
over  more  than  125,000,000  people.3 

According  to  Lenin,  the  government  thus  instituted  is 
an  "immeasurably  higher  form  of  democracy"  than  the 
world  has  previously  witnessed.  Lenin  himself,  however, 
leaves  in  the  background  the  feature  of  the  soviet  system 
which  has  attracted  the  sympathetic  attention  of  foreign 
observers.  According  to  these  writers,  "its  essential 
characteristic  consists  in  its  occupational  constituencies. 
These,  they  say,  represent  real  groups  with  common  pur- 
poses, in  contrast  to  merely  geographical  constituencies, 
which  they  assert  are  meaningless  conglomerations."4 
Since  occupational  representation  is  being  discussed  in 
Western  countries  entirely  apart  from  the  radical  changes 
that  have  been  made  in  the  basis  of  private  property  in 
Russia,5  the  organization  and  working  of  the  Soviet 
system  are  of  great  interest  to  the  student  of  politics.6 

'See  Articles  23,  25,  and  53. 
*  Ashley,  op.  cit. 

3See  an  interesting  article  by  M.  J.  Olgin,  "Mechanics  of  Power  in  Soviet 
Russia,"  The  New  Republic,  June  15,  1921. 

4William  Ashley,  "Bolshevism  and  Democracy,"  Quarterly  Review,  January, 
1921. 

*See  above,  Chapter  VI. 

•The  text  of  the  constitution  which  follows  has  been  reprinted,  by  permission, 
from  The  Nation  of  January  4,  1919.  This  translation,  says  The  Nation,  was 
"made  from  an  official  printed  text  embodying  the  latest  revisions,  and  required 
by  law  to  be  posted  in  all  public  places  in  Russia." 


RUSSIA  385 

2.  THE  RUSSIAN  CONSTITUTION 
THE  RUSSIAN  SOCIALIST  FEDERATED  SOVIET  REPUBLIC 

Resolution  of  the  Fifth  All-Russian  Congress  of  Soviets,  adopted 
on  July  10,  1918 

The  declaration  of  rights  of  the  laboring  and  exploited  peo- 
ple (approved  by  the  Third  All-Russian  Congress  of  Soviets 
in  January,  1918),  together  with  the  constitution  of  the  Soviet 
Republic,  approved  by  the  Fifth  Congress,  constitutes  a  single 
fundamental  law  of  the  Russian  Socialist  Federated  Soviet 
Republic. 

This  fundamental  law  becomes  effective  upon  the  publica- 
tion of  the  same  in  its  entirety  in  the  "  Izvestia  of  the  All-Russian 
General  Executive  Committee."  It  must  be  published  by  all 
organs  of  the  Soviet  Government  and  must  be  posted  in  a  prom- 
inent place  in  every  Soviet  institution. 

The  Fifth  Congress  instructs  the  People's  Commissariat  of 
Education  to  introduce  in  all  schools  and  educational  institu- 
tions of  the  Russian  Republic  the  study  and  explanation  of  the 
basic  principles  of  this  constitution. 

SECTION  I 

DECLARATION  OF  RIGHTS  OF  THE  LABORING  AND 
EXPLOITED  PEOPLE 

Chapter  One 

Article  1.  Russia  is  declared  to  be  a  Republic  of  the  Soviets 
of  Workers',  Soldiers',  and  Peasants'  Deputies.  All  the  central 
and  local  power  belongs  to  these  Soviets. 

Art.  2.  The  Russian  Soviet  Republic  is  organized  on  the 
basis  of  a  free  union  of  free  nations,  as  a  federation  of  Soviet 
national  Republics. 

Chapter  Two 

Art.  3.  Bearing  in  mind  as  its  fundamental  problem  the 
abolition  of  exploitation  of  men  by  men,  the  entire  abolition  of 
the  division  of  the  people  into  classes,  the  suppression  of  exploit- 
ers, the  establishment  of  a  Socialist  society,  and  the  victory  of 
socialism  in  all  lands,  the  Third  All-Russian  Congress  of  Soviets 
of  Workers',  Soldiers',  and  Peasants'  Deputies  further  resolves: 


386       NEW  CONSTITUTIONS  OF  EUROPE 

(1)  For  the  purpose  of  realizing  the  socialization  of  land,  all 
private  property  in  land  is  abolished,  and  the  entire  land  is 
declared  to  be  national  property  and  is  to  be  apportioned  among 
husbandmen  without  any  compensation  to  the  former  owners, 
in  the  measure  of  each  one's  ability  to  till  it. 

(2)  All  forests,  treasures  of  the  earth,  and  waters  of  general 
public  utility,  all  implements  whether  animate  or  inanimate, 
model  farms  and  agricultural  enterprises,  are  declared  to  be 
national  property. 

(3)  As  a  first  step  toward  complete  transfer  of  ownership  to 
the  Soviet  Republic  of  all  factories,  mills,  mines,  railways,  and 
other  means  of  production  and  transportation,  the  Soviet  law 
for  the  control  by  workmen  and  the  establishment  of  the  Su- 
preme Soviet  of  National  Economy  is  hereby  confirmed,  so  as 
to  assure  the  power  of  the  workers  over  the  exploiters. 

(4)  With  reference  to  international  banking  and  finance,  the 
Third  Congress  of  Soviets  is  discussing  the  Soviet  decree  regard- 
ing the  annulment  of  loans  made  by  the  Government  of  the 
Czar,  by  landowners  and  the  bourgeoisie,  and  it  trusts  that  the 
Soviet  Government  will  firmly  follow  this  course  until  the  final 
victory  of  the  international  workers'  revolt  against  the  oppres- 
sion of  capital. 

(5)  The  transfer  of  all  banks  into  the  ownership  of  the  Work- 
ers' and  Peasants'  Government,  as  one  of  the  conditions  of  the 
liberation  of  the  toiling  masses  from  the  yoke  of  capital,  is  con- 
firmed. 

(6)  Universal  obligation  to  work  is  introduced  for  the  pur- 
pose of  eliminating  the  parasitic  strata  of  society  and  organiz- 
ing the  economic  life  of  the  country. 

(7)  For  the  purpose  of  securing  the  working  class  in  the  pos- 
session of  the  complete  power,  and  in  order  to  eliminate  all 
possibility  of  restoring  the  power  of  the  exploiters,  it  is  decreed 
that  all  toilers  be  armed,  and  that  a  Socialist  Red  Army  be 
organized  and  the  propertied  class  be  disarmed. 

Chapter  Three 

Art.  4.  Expressing  its  absolute  resolve  to  liberate  mankind 
from  the  grip  of  capital  and  imperialism,  which  flooded  the 
earth  with  blood  in  this  present  most  criminal  of  all  wars,  the 
Third  Congress  of  Soviets  fully  agrees  with  the  Soviet  Govern- 
ment in  its  policy  of  breaking  secret  treaties,  of  organizing  on  a 


RUSSIA  387 

wide  scale  the  fraternization  of  the  workers  and  peasants  of  the 
belligerent  armies,  and  of  making  all  efforts  to  conclude  a  gen- 
eral democratic  peace  without  annexations  or  indemnities,  upon 
the  basis  of  the  free  determination  of  the  peoples. 

Art.  5.  It  is  also  to  this  end  that  the  Third  Congress  of 
Soviets  insists  upon  putting  an  end  to  the  barbarous  policy  of 
the  bourgeois  civilization  which  enables  the  exploiters  of  a  few 
chosen  nations  to  enslave  hundreds  of  millions  of  the  toiling 
population  of  Asia,  of  the  colonies,  and  of  small  countries  gen- 
erally. 

Art.  6.  The  Third  Congress  of  Soviets  hails  the  policy  of  the 
Council  of  People's  Commissars  in  proclaiming  the  full  inde- 
pendence of  Finland,  in  withdrawing  troops  from  Persia,  and 
in  proclaiming  the  right  of  Armenia  to  self-determination. 

Chapter  Four 

Art.  7.  The  Third  All-Russian  Congress  of  Soviets  of 
Workers',  Soldiers',  and  Peasants'  Deputies  believes  that  now, 
during  the  progress  of  the  decisive  battle  between  the  prole- 
tariat and  its  exploiters,  the  exploiters  cannot  hold  a  position  in 
any  branch  of  the  Soviet  Government.  The  power  must  belong 
entirely  to  the  toiling  masses  and  to  their  plenipotentiary  rep- 
resentatives— the  Soviets  of  Workers',  Soldiers',  and  Peasants' 
Deputies. 

Art.  8.  In  its  effort  to  create  a  league — free  and  voluntary, 
and  for  that  reason  all  the  more  complete  and  secure — of  the 
working  classes  of  all  the  peoples  of  Russia,  the  Third  Con- 
gress of  Soviets  merely  establishes  the  fundamental  principles 
of  the  federation  of  Russian  Soviet  Republics,  leaving  to  the 
workers  and  peasants  of  every  people  to  decide  the  following 
question  at  their  plenary  sessions  of  their  Soviets:  whether  or 
not  they  desire  to  participate,  and  on  what  basis,  in  the  federal 
government  and  other  federal  Soviet  institutions. 

SECTION  II 

GENERAL  PROVISIONS  OF  THE  CONSTITUTION  OP  THE  RUSSIAN 
SOCIALIST  FEDERATED  SOVIET  REPUBLIC 

Chapter  Five 

Art.  9.  The  fundamental  problem  of  the  constitution  of  the 
Russian  Socialist  Federated  Soviet  Republic  involves,  in  view  of 


388       NEW  CONSTITUTIONS  OF  EUROPE 

the  present  transition  period,  the  establishment  of  a  dictator- 
ship of  the  urban  and  rural  proletariat  and  the  poorest  peasantry 
in  the  form  of  a  powerful  All-Russian  Soviet  authority,  for  the 
purpose  of  abolishing  the  exploitation  of  men  by  men  and  of 
introducing  Socialism,  in  which  there  will  be  neither  a  division 
into  classes  nor  a  state  of  autocracy. 

Art.  10.  The  Russian  Republic  is  a  free  Socialist  society  of 
all  the  working  people  of  Russia.  The  entire  power,  within  the 
boundaries  of  the  Russian  Socialist  Federated  Soviet  Repub- 
lic, belongs  to  all  the  working  people  of  Russia,  united  in  urban 
and  rural  Soviets. 

Art.  11.  The  Soviets  of  those  regions  which  differen- 
tiate themselves  by  a  special  form  of  existence  and  national 
character  may  unite  in  autonomous  regional  unions,  ruled 
by  the  local  Congress  of  the  Soviets  and  their  executive  or- 
gans. 

These  autonomous  regional  unions  participate  in  the  Rus- 
sian Socialist  Federated  Soviet  Republic  upon  the  basis  of  a 
federation. 

Art.  12.  The  supreme  power  of  the  Russian  Socialist  Fed- 
erated Soviet  Republic  belongs  to  the  All-Russian  Congress  of 
Soviets,  and,  in  periods  between  the  convocation  of  the  Con- 
gress, to  the  All-Russian  Central  Executive  Committee. 

Art.  13.  For  the  purpose  of  securing  to  the  toilers  real  free- 
dom of  conscience,  the  church  is  to  be  separated  from  the  state 
and  the  school  from  the  church,  and  the  right  of  religious  and 
anti-religious  propaganda  is  accorded  to  every  citizen. 

Art.  14.  For  the  purpose  of  securing  the  freedom  of  expres- 
sion to  the  toiling  masses,  the  Russian  Socialist  Federated  So- 
viet Republic  abolishes  all  dependence  of  the  press  upon  capital, 
and  turns  over  to  the  working  people  and  the  poorest  peasantry 
all  technical  and  material  means  of  publication  of  newspapers, 
pamphlets,  books,  etc.,  and  guarantees  their  free  circulation 
throughout  the  country. 

Art.  15.  For  the  purpose  of  enabling  the  workers  to  hold 
free  meetings,  the  Russian  Socialist  Federated  Soviet  Repub- 
lic offers  to  the  working  class  and  to  the  poorest  peasantry 
furnished  halls,  and  takes  care  of  their  heating  and  lighting 
appliances. 

Art.  16.  The  Russian  Socialist  Federated  Soviet  Republic, 
having  crushed  the  economic  and  political  power  of  the  proper- 


RUSSIA  389 

tied  classes  and  having  thus  abolished  all  obstacles  which  inter- 
fered with  the  freedom  of  organization  and  action  of  the  workers 
and  peasants,  offers  assistance,  material  and  other,  to  the  work- 
ers and  the  poorest  peasantry  in  their  effort  to  unite  and  or- 
ganize. 

Art.  17.  For  the  purpose  of  guaranteeing  to  the  workers  real 
access  to  knowledge,  the  Russian  Socialist  Federated  Soviet  Re- 
public sets  itself  the  task  of  furnishing  full  and  general  free  edu- 
cation to  the  workers  and  the  poorest  peasantry. 

Art.  18.  The  Russian  Socialist  Federated  Soviet  Republic 
considers  work  the  duty  of  every  citizen  of  the  Republic, 
and  proclaims  as  its  motto:  "He  shall  not  eat  who  does  not 
work." 

Art.  19.  For  the  purpose  of  defending  the  victory  of  the 
great  peasants'  and  workers'  revolution,  the  Russian  Socialist 
Federated  Soviet  Republic  recognizes  the  duty  of  all  citizens  of 
the  Republic  to  come  to  the  defense  of  their  Socialist  Father- 
land, and  it,  therefore,  introduces  universal  military  training. 
The  honor  of  defending  the  revolution  with  arms  is 'given  only 
to  the  toilers,  and  the  non-toiling  elements  are  charged  with  the 
performance  of  other  military  duties. 

Art.  20.  In  consequence  of  the  solidarity  of  the  toilers  of 
all  nations,  the  Russian  Socialist  Federated  Soviet  Republic 
grants  all  political  rights  of  Russian  citizens  to  foreigners  who 
live  in  the  territory  of  the  Russian  Republic  and  are  engaged 
in  toil  and  who  belong  to  the  toiling  class.  The  Russian  So- 
cialist Federated  Soviet  Republic  also  recognizes  the  right  of 
local  Soviets  to  grant  citizenship  to  such  foreigners  without 
complicated  formality. 

Art.  21.  The  Russian  Socialist  Federated  Soviet  Republic 
offers  shelter  to  all  foreigners  who  seek  refuge  from  political 
or  religious  persecution. 

Art.  22.  The  Russian  Socialist  Federated  Soviet  Republic, 
recognizing  equal  rights  of  all  citizens,  irrespective  of  their  racial 
or  national  connections,  proclaims  all  privileges  on  this  ground, 
as  well  as  of  national  minorities,  to  be  in  contradiction  with 
the  fundamental  laws  of  the  Republic. 

Art.  23.  Being  guided  by  the  interests  of  the  working  class 
as  a  whole,  the  Russian  Socialist  Federated  Soviet  Republic 
deprives  all  individuals  and  groups  of  individuals  of  rights  which 
could  be  utilized  by  them  to  the  detriment  of  the  Socialist 
Revolution. 


390       NEW  CONSTITUTIONS  OF  EUROPE 

SECTION  m 

CCXKSIBUCITOIT  OF  THE  SOVIET  POWER 

A.  Organization  of  die  Central  Power 
Chapter  Six 

Tke  Att-Ruffian  Congress  of  Sonets  of  Workers',  Peasants9, 
Cossacks',  and  Red  Army  Deputies 

Art.  24,  The  AD-Russian  Congress  of  Soviets  is  the  supreme 
power  of  the  Russian  Socialist  Federated  Soviet  Republic. 

Art.  25.  The  Ail-Russian  Congress  of  Soviets  is  composed 
of  representatives  of  urban  Soviets  (one  delegate  for  25,000 
voters),  and  of  representatives  of  the  provincial  (Gubernia) 
of  Soviet?  one  delegate  for  Ho.iXH)  inhabitants'. 


Nor*  1.    IB  CMC  the  IWincial  Congress  is  not  called  befate  the  AB-I 
Congress  is  convoked,  delegates  for  the  latter  are  sent  directly  from  the  county 
(Omeal  or  Uftai)  Congress. 

Xois  t.    IB  case  the   Regional  (Oblarf)  Congress  is  convoked  indirectly. 
to  the  convocation  of  the  All-Russian  Congress,  delegates  lor  the 


Art.  26.  The  AD-Russian  Congress  is  convoked  by  the  Ail- 
Russian  Central  Executive  Committee  at  least  twice  a  year. 

Art.  27.  A  special  AD-Russian  Congress  is  convoked  by  the 
AD-Russian  Central  Executive  Committee  upon  its  own  initia- 
tive, or  upon  the  request  of  local  Soviets  having  not  less  than 
one-third  of  the  entire  population  of  the  Republic. 

Art.  28.  The  All-Russian  Congress  elects  an  AIl-Russian 
Central  Executive  Committee  of  not  more  than  200  members. 

Art.  29.  The  AD-Russian  Central  Executive  Committee  is 
entirely  responsible  to  the  AD-Russian  Congress  of  Soviets.  .  4 

Art.  30.  In  the  periods  between  the  convocation  of  the  Con- 
gresses, tbe  AD-Russian  Central  ^g|ftCTi**v|^  Committee  is  the 
supreme  power  of  the  Republic. 

Chapter  Sew* 
The  AU-Rttssian  Central  Executive  Committee 

Art.  SI.  The  AD-Russian  Central  Executive  Committee  is 
the  supreme  legislative,  executive,  and  controlling  organ  of 
the  Russian  Sociafist  Federated  Soviet  Republic. 


RUSSIA  391 

Art.  32.  The  All-Russian  Central  Executive  Committee  di- 
rects in  a  general  way  the  activity  of  the  Workers'  and  Peasants' 
government  and  of  all  organs  of  the  Soviet  authority  in  the 
country,  and  it  coordinates  and  regulates  the  operation  of  the 
Soviet  constitution  and  of  the  resolutions  of  the  All-Russian 
Congresses  and  of  the  central  organs  of  the  Soviet  power. 

Art.  33.  The  All-Russian  Central  Executive  Committee  con- 
siders and  enacts  all  measures  and  proposals  introduced  by  the 
Soviet  of  People's  Commissars  or  by  the  various  departments, 
and  it  also  issues  its  own  decrees  and  regulations. 

Art.  34.  The  All-Russian  Central  Executive  Committee  con- 
vokes the  All-Russian  Congress  of  Soviets,  at  which  time  the 
Executive  Committee  reports  on  its  activity  and  on  general 
questions. 

Art.  35.  The  All-Russian  Central  Executive  Committee 
forms  a  Council  of  People's  Commissars  for  the  purpose  of  gen- 
eral management  of  the  affairs  of  the  Russian  Socialist  Federated 
Soviet  Republic,  and  it  also  forms  departments  (People's  Com- 
missariats) for  the  purpose  of  conducting  various  branches. 

Art.  36.  The  members  of  the  All-Russian  Central  Executive 
Committee  work  in  the  various  departments  (People's  Com- 
missariats) or  execute  special  orders  of  the  All-Russian  Central 
Executive  Committee. 

Chapter  Eight 
The  Council  of  People's  Commissars 

Art.  37.  The  Council  of  People's  Commissars  is  entrusted 
with  the  general  management  of  the  affairs  of  the  Russian 
Socialist  Federated  Soviet  Republic. 

Art.  38.  For  the  accomplishment  of  this  task  the  Council  of 
People's  Commissars  issues  decrees,  resolutions,  orders,  and, 
in  general,  takes  all  steps  necessary  for  the  proper  and  rapid 
conduct  of  government  affairs. 

Art.  39.  The  Council  of  People's  Commissars  notifies  im- 
mediately the  All-Russian  Central  Executive  Committee  of  all 
its  orders  and  resolutions. 

Art.  40.  The  All-Russian  Central  Executive  Committee  has 
the  right  to  revoke  or  suspend  all  orders  and  resolutions  of 
the  Council  of  People's  Commissars. 

Art.  41.  All  orders  and  resolutions  of  the  Council  of  People's 
Commissars  of  great  political  significance  are  turned  over  for 


392       NEW  CONSTITUTIONS  OF  EUROPE 

consideration  and  final  approval  to  the  All-Russian  Central 
Executive  Committee. 

NOTE.  Measures  requiring  immediate  execution  may  be  enacted  directly 
by  the  Council  of  People's  Commissars. 

Art.  42.  The  members  of  the  Council  of  People's  Com- 
missars stand  at  the  head  of  the  various  People's  Commissariats. 

Art.  43.     There  are  seventeen  People's  Commissars : 

(1)  Foreign  Affairs. 

(2)  Army. 

(3)  Navy. 

(4)  Interior. 

(5)  Justice. 

(6)  Labor. 

(7)  Social  Welfare. 

(8)  Education. 

(9)  Post  and  Telegraph. 

(10)  National  Affairs. 

(11)  Finances. 

(12)  Ways  of  Communication. 

(13)  Agriculture. 

(14)  Commerce  and  Industry. 

(15)  National  Supplies. 

(16)  State  Control. 

(17)  Supreme  Soviet  of  National  Economy. 

(18)  Public  Health. 

Art.  44.  Every  Commissar  has  a  College  (Committee)  of 
which  he  is  the  President,  and  the  members  of  which  are  ap- 
pointed by  the  Council  of  People's  Commissars. 

Art.  45.  A  People's  Commissar  has  the  individual  right  to 
decide  on  all  questions  under  the  jurisdiction  of  his  Commissariat, 
and  he  is  to  report  on  his  decision  to  the  College.  If  the  Col- 
lege does  not  agree  with  the  Commissar  on  some  decisions,  the 
former  may,  without  stopping  the  execution  of  the  decision, 
complain  of  it  to  the  executive  members  of  the  Council  of 
People's  Commissars  or  to  the  All-Russian  Central  Executive 
Committee. 

Individual  members  of  the  College  have  this  right  also. 

Art.  46.  The  Council  of  People's  Commissars  is  entirely 
responsible  to  the  All-Russian  Congress  of  Soviets  and  the 
All-Russian  Central  Executive  Committee. 

Art.  47.     The  People's  Commissars  and  the  Colleges  of  the 


RUSSIA  393 

People's  Commissariats  are  entirely  responsible  to  the  Council 
of  People's  Commissars  and  the  All-Russian  Central  Executive 
Committee. 

Art.  48.  The  title  of  People's  Commissar  belongs  only  to  the 
members  of  the  Council  of  People's  Commissars,  which  is  in 
charge  of  general  affairs  of  the  Russian  Socialist  Federated 
Soviet  Republic,  and  it  cannot  be  used  by  any  other  represen- 
tative of  the  Soviet  power,  either  central  or  local. 

Chapter  Nine 

Affairs  in  the  jurisdiction  of  the  All-Russian  Congress  and  the 
All-Russian  Central  Executive  Committee 

Art.  49.  The  All-Russian  Congress  and  the  All-Russian 
Central  Executive  Committee  deal  with  questions  of  state, 
such  as: 

(1)  Ratification  and  amendment  of  the  constitution  of  the 
Russian  Socialist  Federated  Soviet  Republic. 

(2)  General  direction  of  the  entire  interior  and  foreign  policy 
of  the  Russian  Socialist  Federated  Soviet  Republic. 

(3)  Establishing  and  changing  boundaries,  also  ceding  terri- 
tory belonging  to  the  Russian  Socialist  Federated  Soviet  Re- 
public. 

(4)  Establishing  boundaries  for  regional  Soviet  unions  be- 
longing to  the  Russian  Socialist  Federated   Soviet  Republic, 
also  settling  disputes  among  them. 

(5)  Admission  of  new  members  to  the  Russian  Socialist  Fed- 
erated Soviet  Republic,  and  recognition  of  the  secession  of  any 
parts  of  it. 

(6)  The  general  administrative  division  of  the  territory  of 
the  Russian  Socialist  Federated  Soviet  Republic  and  the  ap- 
proval of  regional  unions. 

(7)  Establishing  and  changing  of  weights,    measures,  and 
money  denominations  in  the  Russian  Socialist  Federated  Soviet 
Republic. 

(8)  Foreign  relations,  declaration  of  war,  and  ratification  of 
peace  treaties. 

(9)  Making  loans,  signing  commercial  treaties,  and  financial 
agreements. 

(10)  Working  out  a  basis  and  a  general  plan  for  the  national 
economy  and  for  its  various  branches  in  the  Russian  Socialist 
Federated  Soviet  Republic. 


394       NEW  CONSTITUTIONS  OF  EUROPE 

(11)  Approval  of  the  budget  of  the  Russian  Socialist  Feder- 
ated Soviet  Republic. 

(12)  Levying  taxes  and  establishing  the  duties  of  citizens  to 
the  state. 

(13)  Establishing  the  bases  for  the  organization  of  armed 
forces. 

(14)  State  legislation,  judicial  organization  and  procedure, 
civil  and  criminal  legislation,  etc. 

(15)  Appointment  and  dismissal  of  the  individual  People's 
Commissars  or  the  entire  Council;  also  approval  of  the  Presi- 
dent of  the  Council  of  People's  Commissars. 

(16)  Granting  and  cancelling  Russian  citizenship  and  fixing 
rights  of  foreigners. 

(17)  The  right  to  declare  individual  and  general  amnesty. 
Art.  50.     Besides     the     above-mentioned     questions,     the 

All-Russian  Congress  and  the  All-Russian  Central  Executive 
Committee  have  charge  of  all  other  affairs  which,  according  to 
their  decision,  require  their  attention. 

Art.  51.  The  following  questions  are  solely  under  the  juris- 
diction of  the  All-Russian  Congress : 

(1)  Ratification  and  amendment  of  the  fundamental  prin- 
ciples of  the  Soviet  constitution. 

(2)  Ratification  of  peace  treaties. 

Art.  52.  The  decision  of  questions  indicated  in  Paragraphs  3 
and  8  of  Article  49  may  be  made  by  the  All-Russian  Central 
Executive  Committee  only  in  case  it  is  impossible  to  convoke 
the  Congress. 

B.  Organization  of  Local  Soviets 

Chapter  Ten 
The  Congresses  of  the  Soviets 

Art.  53.     Congresses  of  Soviets  are  composed  as  follows: 

(1)  Regional:  of  representatives  of  the  urban  and  county 
Soviets,  one  representative  for  25,000  inhabitants  of  the  county, 
and  one  representative  for  5,000  voters  of  the  cities — but  not 
more  than  500  representatives  for  the  entire  region — or  of  rep- 
resentatives of  the  provincial  Congresses,  chosen  on  the  same 
basis,  if  such  a  Congress  meets  before  the  regional  Congress. 

(2)  Provincial  (Gubernia):  of  representatives  of  urban  and 
rural  (Volosi)  Soviets,  one  representative  for  10,000  inhabit- 


RUSSIA  395 

ants  from  the  rural  districts,  and  one  representative  for  2,000 
voters  in  the  city;  altogether  not  more  than  300  representatives 
for  the  entire  province.  In  case  the  county  Congress  meets 
before  the  provincial,  election  takes  place  on  the  same  basis, 
but  by  the  county  Congress  instead  of  the  rural. 

(3)  County:  of  representatives  of  rural  Soviets,  one  delegate 
for  each  1,000  inhabitants,  but  not  more  than  300  delegates  for 
the  entire  county. 

(4)  Rural  (Volost):  of  representatives  of  all  village  Soviets 
in  the  Volost,  one  delegate  for  ten  members  of  the  Soviet. 

NOTE  1.  Representatives  of  urban  Soviets  which  have  a  population  of  not 
more  than  10,000  persons  participate  in  the  county  Congress;  village  Soviets 
of  districts  of  less  than  1,000  inhabitants  unite  for  the  purpose  of  electing  dele- 
gates to  the  county  Congress. 

NOTE  2.  Rural  Soviets  of  less  than  ten  members  send  one  delegate  to  the 
rural  (Volost)  Congress. 

Art.  54.  Congresses  of  the  Soviets  are  convoked  by  the  re- 
spective Executive  Committees  upon  their  own  initiative,  or 
upon  request  of  local  Soviets  comprising  not  less  than  one-third 
of  the  entire  population  of  the  given  district.  In  any  case  they 
are  convoked  at  least  twice  a  year  for  regions,  every  three 
months  for  provinces  and  counties,  and  once  a  month  for  rural 
districts. 

Art.  55.  Every  Congress  of  Soviets  (regional,  provincial, 
county,  and  rural)  elects  its  Executive  organ — an  Executive 
Committee  the  membership  of  which  shall  not  exceed: 

(1)  for  regions  and  provinces,  25;  (2)  for  a  county,  20;  (3)  for 
a  rural  district,  10.  The  Executive  Committee  is  responsible 
to  the  Congress  which  elected  it. 

Art.  56.  In  the  boundaries  of  the  respective  territories  the 
Congress  is  the  supreme  power;  during  intervals  between 
the  convocations  of  the  Congress,  the  Executive  Committee  is 
the  supreme  power. 

Chapter  Eleven 
The  Soviet  of  Deputies 

Art.  57.     Soviets  of  Deputies  are  formed: 

(1)  In  cities,  one  deputy  for  each  1,000  inhabitants;  the  total 
to  be  not  less  than  50  and  not  more  than  1,000  members. 

(2)  All  other  settlements  (towns,  villages,  hamlets,  etc.)  of 
less  than  10,000  inhabitants,  one  deputy  for  each  100  inhabi- 


396       NEW  CONSTITUTIONS  OF  EUROPE 

tants;  the  total  to  be  not  less  than  3  and  not  more  than  50  dep- 
uties for  each  settlement. 

Term  of  the  deputy,  three  months 

NOTE.  In  small  rural  sections,  whenever  possible,  all  questions  shall  be  de- 
cided at  general  meetings  of  voters. 

Art.  58.  The  Soviet  of  Deputies  elects  an  Executive  Com- 
mittee to  deal  with  current  affairs;  not  more  than  5  members 
for  rural  districts,  one  for  every  50  members  of  the  Soviets  of 
cities,  but  not  more  than  15  and  not  less  than  3  in  the  aggregate 
(Petrograd  and  Moscow  not  more  than  40).  The  Executive 
Committee  is  entirely  responsible  to  the  Soviet  which  elected  it. 

Art.  59.  The  Soviet  of  Deputies  is  convoked  by  the  Execu- 
tive Committee  upon  its  own  initiative,  or  upon  the  request  of 
not  less  than  one-half  of  the  membership  of  the  Soviet;  in  any 
case  at  least  once  a  week  in  cities,  and  twice  a  week  in  rural 
sections. 

Art.  60.  Within  its  jurisdiction  the  Soviet,  and  in  cases 
mentioned  in  Article  57,  Note,  the  meeting  of  the  voters,  is 
the  supreme  power  in  the  given  district. 


Chapter  Twelve 
Jurisdiction  of  the  local  organs  of  the  Soviets 

Art.  61.  Regional,  provincial,  county,  and  rural  organs  of 
the  Soviet  power  and  also  the  Soviets  of  Deputies  have  to  per- 
form the  following  duties : 

(1)  Carry  out  all  orders  of  the  respective  higher  organs  of 
the  Soviet  power. 

(2)  Take  all  steps  toward  raising  the  cultural  and  economic 
standard  of  the  given  territory. 

(3)  Decide  all  questions  of  local  importance  within  their  re- 
spective territory. 

(4)  Coordinate  all  Soviet  activity  in  their  respective  territory. 
Art.  62.     The  Congresses  of  Soviets  and  their  Executive 

Committees  have  the  right  to  control  the  activity  of  the  local 
Soviets  (i.  e.,  the  regional  Congress  controls  all  Soviets  of  the 
respective  regions;  the  provincial,  of  the  respective  province, 
with  the  exception  of  the  urban  Soviets,  etc.) ;  and  the  regional 
and  provincial  Congresses  and  their  Executive  Committees  in 
addition  have  the  right  to  overrule  the  decisions  of  the  Soviets 


RUSSIA  397 

of  their  districts,  giving  notice  in  important  cases  to  the  central 
Soviet  authority. 

Art.  63.  For  the  purpose  of  performing  their  duties,  the  local 
Soviets,  rural  and  urban,  and  the  Executive  Committees  form 
sections  respectively. 

SECTION  rv 

THE  RIGHT  TO  VOTE 

Chapter  Thirteen 

Art.  64.  The  right  to  vote  and  to  be  elected  to  the  Soviets 
is  enjoyed  by  the  following  citizens,  irrespective  of  religion,  na- 
tionality, domicile,  etc.,  of  the  Russian  Socialist  Federated 
Soviet  Republic,  of  both  sexes,  who  shall  have  completed  their 
eighteenth  year  by  the  day  of  election : 

(1)  All  who  have  acquired  the  means  of  living  through  labor 
that  is  productive  and  useful  to  society,  and  also  persons  en- 
gaged in  housekeeping,  which  enables  the  former  to  do  produc- 
tive work,  i,  e.,  laborers  and  employees  of  all  classes  who  are 
employed  in  industry,  trade,  agriculture,  etc. ;  and  peasants  and 
Cossack  agricultural  laborers  who  employ  no  help  for  the  pur- 
pose of  making  profits. 

(2)  Soldiers  of  the  army  and  navy  of  the  Soviets. 

(3)  Citizens  of  the  two  preceding  categories  who  have  to  any 
degree  lost  their  capacity  to  work. 

NOTE  1.  Local  Soviets  may,  upon  approval  of  the  central  power,  lower  the 
age  standard  mentioned  herein. 

NOTE  2.  Non-citizens  mentioned  in  Article  20  (Section  II,  Chapter  5)  have 
the  right  to  vote. 

Art.  65.  The  following  persons  enjoy  neither  the  right  to 
vote  nor  the  right  to  be  voted  for,  even  though  they  belong  to 
one  of  the  categories  enumerated  above,  namely: 

(1)  Persons  who  employ  hired  labor  in  order  to  obtain  from 
it  an  increase  in  profits. 

(2)  Persons  who  have  an  income  without  doing  any  work, 
such  as  interest  from  capital,  receipts  from  property,  etc. 

(3)  Private  merchants,  trade  and  commercial  brokers. 

(4)  Monks  and  clergy  of  all  denominations. 

(5)  Employees  and  agents  of  the  former  police,  the  gendarme 
corps,  and  the  Okhrana  [Czar's  secret  service],  also  members 
of  the  former  reigning  dynasty. 


398       NEW  CONSTITUTIONS  OF  EUROPE 

(6)  Persons  who  have  in  legal  form  been  declared  demented 
or  mentally  deficient,  and  also  persons  under  guardianship. 

(7)  Persons  who  have  been  deprived  by  a  Soviet  of  their 
rights  of  citizenship  because  of  selfish  or  dishonorable  offenses, 
for  the  period  fixed  by  the  sentence. 


Chapter  Fourteen 
Elections 

Art.  66.  Elections  are  conducted  according  to  custom  on 
days  fixed  by  the  local  Soviets. 

Art.  67.  Election  takes  place  in  the  presence  of  an  electoral 
committee  and  the  representative  of  the  local  Soviet. 

Art.  68.  In  case  the  representative  of  the  Soviet  cannot  be 
present  for  valid  causes,  the  chairman  of  the  electoral  committee 
takes  his  place,  and  in  case  the  latter  is  absent,  the  chairman  of 
the  election  meeting  replaces  him. 

Art.  69.  Minutes  of  the  proceedings  and  results  of  elections 
are  to  be  compiled  and  signed  by  the  members  of  the  electoral 
committee  and  the  representative  of  the  Soviet. 

Art.  70.  Detailed  instructions  regarding  the  election  pro- 
ceedings and  the  participation  in  them  of  professional  and  other 
workers'  organizations  are  to  be  issued  by  the  local  Soviets, 
according  to  the  instructions  of  the  All-Russian  Central  Exec- 
utive Committee. 

Chapter  Fifteen 
The  checking  and  cancellation  of  elections  and  recall  of  the  deputies 

Art.  71.  The  respective  Soviets  receive  ah1  the  records  of 
the  proceedings  of  the  election. 

Art.  72.  The  Soviet  appoints  a  commission  to  verify  the  elec- 
tions. 

Art.  73.  This  commission  reports  on  the  results  to  the 
Soviets. 

Art.  74.  The  Soviet  decides  the  question  when  there  is  doubt 
as  to  which  candidate  is  elected. 

Art.  75.  The  Soviet  announces  a  new  election  if  the  elec- 
tion of  one  candidate  or  another  cannot  be  determined. 

Art.  76.  If  an  election  was  irregularly  carried  on  in  its  en- 
tirety, it  may  be  declared  void  by  a  higher  Soviet  authority. 


RUSSIA  399 

Art.  77.  The  highest  authority  in  relation  to  questions  of 
elections  is  the  All-Russian  Central  Executive  Committee. 

Art.  78.  Voters  who  have  sent  a  deputy  to  the  Soviet  have 
the  right  to  recall  him,  and  to  have  a  new  election,  according 
to  general  provisions. 


SECTION  v 

THE  BUDGET 

Chapter  Sixteen 

Art.  79.  The  financial  policy  of  the  Russian  Socialist  Fed- 
erated Soviet  Republic  in  the  present  transition  period  of  dicta- 
torship of  the  proletariat,  facilitates  the  fundamental  purpose 
of  expropriation  of  the  bourgeoisie  and  the  preparation  of  con- 
ditions necessary  for  the  equality  of  all  citizens  of  Russia  in  the 
production  and  distribution  of  wealth.  To  this  end  it  sets  forth 
as  its  task  the  supplying  of  the  organs  of  the  Soviet  power 
with  all  necessary  funds  for  local  and  state  needs  of  the  Soviet 
Republic,  without  regard  to  private  property  rights. 

Art.  80.  The  state  expenditure  and  income  of  the  Russian 
Socialist  Federated  Soviet  Republic  are  combined  in  the  state 
budget. 

Art.  81.  The  All-Russian  Congress  of  Soviets  or  the  All- 
Russian  Central  Executive  Committee  determine  what  matters 
of  income  and  taxation  shall  go  to  the  state  budget  and  what 
shall  go  to  the  local  Soviets;  they  also  set  the  limits  of  taxes. 

Art.  82.  The  Soviets  levy  taxes  only  for  the  local  needs. 
The  state  needs  are  covered  by  the  funds  of  the  state  treasury. 

Art.  83.  No  expenditure  out  of  the  state  treasury  not  set 
forth  in  the  budget  of  income  and  expense  shall  be  made  with- 
out a  special  order  of  the  central  power. 

Art.  84.  The  local  Soviets  shall  receive  credits  from  the 
proper  People's  Commissars  out  of  the  state  treasury,  for  the 
purpose  of  making  expenditures  for  general  state  needs. 

Art.  85.  All  credits  allotted  to  the  Soviets  from  the  state 
treasury,  and  also  credits  approved  for  local  needs,  must  be 
expended  according  to  the  estimates,  and  cannot  be  used  for 
any  other  purposes  without  a  special  order  of  the  All-Russian 
Central  Executive  Committee  and  the  Soviet  of  People's  Com- 
missars. 

Art.  86.     Local  Soviets  draw  up  semi-annual  and  annual  esti- 


400       NEW  CONSTITUTIONS  OF  EUROPE 

mates  of  income  and  expenditure  for  local  needs.  The  esti- 
mates of  urban  and  rural  Soviets  participating  in  county  con- 
gresses, and  also  the  estimates  of  the  county  organs  of  the  So- 
viet power,  are  to  be  approved  by  provincial  and  regional 
congresses  or  by  their  executive  committees;  the  estimates  of 
the  urban,  provincial,  and  regional  organs  of  the  Soviets  are  to 
be  approved  by  the  All-Russian  Central  Executive  Committee 
and  the  Council  of  People's  Commissars. 

Art.  87.  The  Soviets  may  ask  for  additional  credits  from 
the  respective  People's  Commissariats  for  expenditures  not  set 
forth  in  the  estimate,  or  where  the  allotted  sum  is  insufficient. 

Art.  88.  In  case  of  an  insufficiency  of  local  funds  for  local 
needs,  the  necessary  subsidy  may  be  obtained  from  the  state 
treasury  by  applying  to  the  All-Russian  Central  Executive 
Committee  or  the  Council  of  People's  Commissars. 

SECTION  VI 

THE  COAT  OF  ARMS  AND  FLAG  OF  THE  RUSSIAN  SOCIALIST 
FEDERATED  SOVIET  REPUBLIC 

Chapter  Seventeen 

Art.  89.  The  coat  of  arms  of  the  Russian  Socialist  Federated 
Soviet  Republic  consists  of  a  red  background  on  which  a  golden 
scythe  and  a  hammer  are  placed  (crosswise,  handles  downward) 
in  sun-rays  and  surrounded  by  a  wreath,  inscribed: 

Russian  Socialist  Soviet  Federated  Republic 
Workers  of  the  World,  Unite! 

Art.  90.  The  commercial,  naval  and  army  flag  of  the  Russian 
Socialist  Federated  Soviet  Republic  consists  of  a  red  cloth,  in 
the  left  corner  of  which  (on  top,  near  the  pole)  there  are  in  golden 
characters  the  letters  R.  S.  F.  S.  R.,  or  the  inscription:  Russian 
Socialist  Federated  Soviet  Republic. 

Chairman  of  the  fifth  All-Russian  Congress  of  Soviets  and 
of  the  All-Russian  Central  Executive  Committee :  J.  SVERDLOFF. 

Executive  Officers,  All-Russian  Central  Executive  Commit- 
tee: T.  I.  TEODORO WITCH,  F.  A.  ROSIN,  A.  P.  ROSENHOLZ, 

A.  C.  MlTROFANOFF,  K.  G.  MAXIMOFF. 

Secretary  of  the  All-Russian  Central  Executive  Committee: 

V.  A.  AVANESSOFF. 


CHAPTER  XVI 
POLAND 

1.    HISTORICAL  NOTE 

AFTER  the  celebrated  constitution   of  May  3,   1791,     p0iish  Con- 
Poland  had  no  fundamental  law  meriting  the  name  of  a     stitution  of 
constitution  until,  on  March  17,  1921,  she  adopted  her     1791 
present  charter  of  government.     In  the  history  of  political 
institutions,  Poland  is  associated  almost  exclusively  with 
the  "liberum  veto,"  by  which,  from  1650  onward,  a  single 
member  of  the  Polish  diet  could  by  refusing  assent  defeat 
a  resolution  otherwise  unanimously  agreed  upon.     Hamil- 
ton in  The  Federalist  (No.  xxii)  used  this  analogy  when  he 
complained  that  "Congress,  from  the  non-attendance  of 
a  few  states,  have  been  frequently  in  the  situation  of  a 
Polish  diet,  where  a  single  vote  has  been  sufficient  to  put 
a  stop  to  all  their  movements."     Voltaire  described,  not 
only  the  constitutional  arrangement,  but  also  its  practical 
politics  when  he  said: 

Each  deputy  enjoys  the  right  which  the  tribunes  of  the  people  The  lib- 
had  at  Rome,  of  opposing  the  laws  of  the  senate.  A  single  erum  veto 
gentleman  who  says,  /  protest,  invalidates  by  this  one  word  the 
unanimous  resolutions  of  the  rest,  and  if  he  departs  from 
the  place  where  the  diet  is  being  held,  it  must  then  dissolve.  The 
remedy  provided  for  the  disorders  which  arise  from  this  law  is 
more  dangerous  still.  Poland  is  seldom  without  two  factions. 
Unanimity  in  the  diets  being  thus  impossible,  each  party  forms 
a  confederation,  in  which  they  decide  by  a  plurality  of  votes, 
without  any  regard  to  the  protests  of  the  minority.  These 
assemblies,  illegal,  according  to  the  laws,  but  authorized  by  the 
laws,  are  held  in  the  king's  name,  although  often  without  his 
consent,  and  against  his  interests.  When  the  dissensions  are 

401 


Partitions  of 
Poland 


Proposed 
restoration 


over,  it  belongs  to  the  general  diets  to  confirm  or  to  annul  the 
acts  of  these  confederations.1 

The  internal  stagnation  resulting  from  this  liberum 
veto  was  in  part  responsible  for  Poland's  misfortunes.2 
The  first  dismemberment  took  place  in  1772.  Reduced 
in  limits,  Poland  abolished  her  ancient  government  and  in 
1791  adopted  a  constitution  copied  in  part  from  the  consti- 
tution that  had  been  recently  adopted  in  France.  May  3 
— the  day  of  the  adoption  of  the  constitution — is  still 
celebrated  in  Polish  history.3  But  a  year  later  the 
second  partition  took  place;  and  in  1795  the  remainder  of 
Poland  was  divided  among  the  rulers  of  Prussia,  Russia, 
and  Austria.  From  the  date  of  the  final  partition  until 
the  end  of  the  World  War,  Poland  and  the  Poles  were 
subject  to  a  tripartite  alien  domination. 

The  restoration  of  Poland  was,  from  the  first,  on  the 
political  tapis  of  the  settlements  after  the  war.  On  August 

JJ.  de  Boisjoslin,  "Poland,"  Lalor's  Cyclopaedia  of  Political  Science,  Vol. 
Ill,  p.  204.  Calhoun  used  Poland  as  an  example  of  government  by  a  "concur- 
rent majority" — an  extreme  example  "that  would  be  thought  impracticable 
had  it  never  existed."  In  Poland  the  principle  was  carried  so  far  "that,  in  the 
election  of  her  kings,  the  concurrence  or  acquiescence,  of  every  individual  of  the 
nobles  and  gentry  present,  in  an  assembly  numbering  usually  from  one  hundred 
and  fifty  to  two  hundred  thousand,  was  required  to  make  a  choice;  thus  giving 
to  each  individual  a  veto  on  his  election.  So,  likewise,  every  member  of  her 
Diet  (the  supreme  legislative  body),  consisting  of  the  king,  the  senate,  bishops 
and  deputies  of  the  nobility,  and  gentry  of  the  platinates,  possessed  a  veto  on 
all  its  proceedings; — thus  making  an  unanimous  vote  necessary  to  enact  a  law, 
or  to  adopt  any  measure  whatever.  And,  as  if  to  carry  the  principle  to  the 
utmost  extent,  the  veto  of  a  single  member  not  only  defeated  the  particular  bill 
or  measure  in  question,  but  prevented  all  others,  passed  during  the  session,  from 
taking  effect.  Further,  the  principle  could  not  be  carried.  It,  in  fact,  made 
every  individual  of  the  nobility  and  gentry  a  distinct  element  in  the  organism; 
— or,  to  vary  the  expression,  made  him  an  Estate  of  the  kingdom.  And  yet  this 
government  lasted,  in  this  form,  more  than  two  centuries;  embracing  the  period 
of  Poland's  greatest  power  and  renown."  "A  Disquisition  on  Government," 
Works,  Vol.  I,  p.  71. 

2See  Levinski-Corwin,  The  Political  History  of  Poland,  Chapter  XIV  (New 
York,  1917).  The  power  which  "diplomacy  by  conference"  necessarily  grants 
to  dissenting  minority  states,  or  to  a  single  state  if  it  is  of  sufficient  importance 
in  international  affairs,  resembles  in  some  respects  this  liberum  veto. 

'Polish  historians  are  fond  of  quoting  Burke's  eulogy  of  the  constitution 
of  1791.  "In  contemplating  that  change,  humanity  has  everything  to  rejoice 
and  glory  in;  nothing  to  be  ashamed  of,  nothing  to  suffer.  So  far  as  it  has  gone, 
it  probably  is  the  most  pure  and  defecated  public  good  which  has  ever  been  con- 
ferred on  mankind."  Appeal  from  the  New  to  the  Old  Whigs. 


POLAND 


403 


14,  1914,  the  Grand  Duke  Nicholas  announced  that  one  of 
the  war  aims  of  Russia  was  to  secure  the  autonomy  of  the 
reunited  Polish  territories  under  the  Romanoff  sceptre. 
On  November  5,  1916,  the  German  and  Austrian  Emperors 
proclaimed  the  creation  of  a  Polish  kingdom,  united  to  the 
Central  Powers  and  including  the  territories  that  had 
been  dominated  by  Russia.  To  execute  this  act,  a  Provi- 
sional Council  of  State  was  created;  but  it  exercised 
only  a  very  nominal  legislative  and  administrative 
authority,  although  it  took  some  steps  toward  the  framing 
of  a  constitution  under  a  proposed  monarchical  form  of 
government.1 

On  September  12,  1917,  a  Council  of  Regency  was  cre- 
ated, which  was  invested  with  supreme  power  in  the  state. 
On  February  4,  1918,  this  Council  promulgated  a  law 
creating  a  new  Council  of  State  with  some  legislative 
competence.  This  body  began  its  work  on  June  22,  and 
some  days  later  the  Government  submitted  to  it  two  laws 
—  one  relating  to  the  convocation  of  a  Polish  diet  and  the 
other  to  elections.  Jn  November  a  brief  and  tentative 
constitution  was  adopted  ("the  Polish  Republic"  being 
substituted  for  the  "Council  of  Regency"),  and  General 
Joseph  Pilsudski  was  provisionally  appointed  Chief  of 
State. 

Elections  for  a  constituent  assembly  were  held  in  Jan- 
uary, 1919.  Universal  suffrage  and  proportional  repre- 
sentation were  used.  One-third  of  the  population  — 
between  five  and  six  millions  —  went  to  the  polls,  and  412 
deputies  were  returned.2  The  assembly  met  at  once  and 
appointed  a  commission  on  the  constitution.  A  number 
of  proposals  were  made  by  different  Polish  jurists  and  polit- 

Potulicki,  Constitution  de  la  republique  de  Pologne  du  17  Mars,  1921, 


p.  7  (Paris,  1921). 

'There  were  70  circumscriptions  and  the  apportionment  was  one  representative 
for  50,000  inhabitants  or  for  a  fraction  exceeding  25,000.     This  would  have 
given  528  representatives;  but  elections  did  not  take  place  in  circumscriptions  in 
Prussian  Poland.     Blociszewski,  "La  constitution  polonaise  du  17  Mars,  1921. 
Revue  des  Sciences  Politiques,  Vol.  XLV,  p.  32  (Janvier-Mars,  1922). 


Council  of 

Regency, 

1917 


Constituent 
Assembly  of 
1919 


404       NEW  CONSTITUTIONS  OF  EUROPE 


Contested 
questions 


Constitution 
of  1921 


ical  parties,  and  on  January  21,  1920,  a  preliminary  draft 
was  finally  adopted  by  the  commission  as  a  basis  for  dis- 
cussion. On  July  8,  1920,  the  commission  made  a  ma- 
jority report. 

There  were  five  questions  that  were  most  bitterly  dis- 
cussed. The  Left  wished  no  Senate  at  all,  even  though 
in  the  draft  proposed  the  veto  of  the  upper  chamber  could 
be  overridden  by  a  three-fifths  vote  in  the  lower  house. 
The  minority  adopted  obstructionist  tactics,  and  the 
articles  relating  to  the  Senate  were  not  voted  until 
January  27  and  28,  1921.  The  minority  wanted  the 
Chief  of  the  State  elected  by  popular  vote  and  not  by  the 
two  chambers.  The  relations  between  the  Church  and 
the  State  were  also  a  source  of  difference.  The  minority 
desired  to  have  a  separation  guaranteed  by  the  consti- 
tution, but  the  draft  proposed  to  leave  the  relations  of 
Church  and  State  to  be  determined  by  law.  With  regard 
to  the  revision  of  the  constitution,  the  draft  proposed  re- 
vision every  twenty -five  years,  with  the  proviso  that  the 
first  revision  might  take  place  after  ten  years.  Various 
solutions  were  proposed,  particularly  with  respect  to  the 
first  revision.1  Finally,  difficulties  arose  in  respect  to  the 
provisions  concerning  eminent  domain.  The  parties  of 
the  Right  wanted  a  constitutional  declaration  that  prop- 
erty could  not  be  taken  for  public  use  without  compensa- 
tion. But  the  Socialists,  citing  the  provisions  of  the  Ger- 
man and  Czechoslovak  constitutions,  demanded  that  the 
legislature  be  free  to  expropriate  property  needed  in  the 
public  interest.2  In  the  end  all  differences  were  reconciled 
and  the  constitution  was  adopted  on  March  17,  1921.3 


1See  Article  125  and  note. 
•See  Article  99. 

'Blociszewski,  op.  cit.  The  text  of  the  constitution  used  here  is  that  of  the 
official  translation  issued  by  the  Polish  Information  Bureau  (New  York  City). 
It  appeared  also  in  Current  History,  May,  1921.  There  are  a  number  of  French 
translations,  the  best  being  that  of  Potulicki,  op.  cit. 


POLAND  405 


2.  CONSTITUTION  OF  THE  REPUBLIC  OF  POLAND 

In  the  name  of  Almighty  God! 

We,  the  Polish  Nation,  thankful  to  Providence  for  freeing  us 
from  a  servitude  of  a  century  and  a  half;  remembering  gratefully 
the  courage  and  steadfastness  of  the  self-sacrificing  struggle  of 
generations  which  have  unceasingly  devoted  their  best  efforts 
to  the  cause  of  independence;  taking  up  the  glorious  tradition 
of  the  memorable  Constitution  of  the  Third  of  May;  having  in 
mind  the  weal  of  our  whole,  united,  and  independent  mother- 
country,  and  desiring  to  establish  her  independent  existence, 
power,  safety,  and  social  order  on  the  eternal  principles  of  right 
and  liberty;  desirous  also  of  ensuring  the  development  of  all 
her  moral  and  material  forces  for  the  good  of  the  whole  of  renas- 
cent humanity,  and  of  securing  equality  to  all  citizens  of  the 
Republic,  and  respect,  due  rights,  and  the  special  protection  of 
the  state  to  labor; — do  enact  and  establish  in  the  Legislative 
Sejm  of  the  Republic  of  Poland  this  constitutional  law. 

SECTION  I 
THE  REPUBLIC 

Article  1.     The  Polish  State  is  a  Republic. 

Art.  2.  Sovereignty  in  the  Republic  of  Poland  belongs  to 
the  nation.  The  organs  of  the  nation  are:  in  the  domain  of 
legislation,  the  Sejm  and  the  Senate;  in  the  domain  of  executive 
power,  the  President  of  the  Republic,  jointly  with  the  responsi- 
ble ministers;  in  the  domain  of  the  administration  of  justice, 
independent  courts. 

SECTION  n 
LEGISLATIVE  POWER 

Art.  3.  The  domain  of  state  legislation  comprises  the  estab- 
lishment of  all  public  and  private  laws,  and  the  manner  of  their 
execution. 

There  can  be  no  statute  without  the  consent  of  the  Sejm,  ex- 
pressed in  a  manner  conforming  to  the  Standing  Orders. 

A  statute  voted  by  the  Sejm  comes  into  force  at  the  time  de- 
termined in  the  statute  itself. 

The  Republic  of  Poland,  basing  its  organization  on  the  prin- 


406       NEW  CONSTITUTIONS  OF  EUROPE 

ciple  of  broad  territorial  self-government,  will  delegate  to  the 
bodies  representing  this  self-government  the  proper  domain  of 
legislation,  especially  in  administrative,  cultural,  and  economic 
fields,  to  be  defined  more  fully  by  statutes  of  the  state. 

Ordinances  by  public  authorities,  from  which  result  rights  or 
duties  of  citizens,  have  binding  force  only  if  issued  by  the  au- 
thority of  a  statute,  and  with  a  specific  reference  to  the  same. 

Art.  4.  A  statute  of  the  state  will  determine  annually  the 
budget  of  the  state  for  the  ensuing  year. 

Art.  5.  The  establishment  of  the  numerical  strength  of  the 
army,  and  permission  for  the  annual  draft  of  recruits,  can  be 
determined  only  by  statute. 

Art.  6.  The  contracting  of  a  state  loan,  the  alienation,  ex- 
change or  pledging  of  immovable  property  of  the  state,  the  im- 
position of  taxes  and  public  dues,  the  determination  of  customs 
duties  and  monopolies,  the  establishment  of  the  monetary  system 
and  the  taking  over  by  the  state  of  a  financial  guarantee,  can 
take  place  only  by  the  authority  of  a  statute. 

Art.  7.  The  Government  will  present  annually  for  parlia- 
mentary confirmation  the  accounts  of  the  state  for  the  past 
year. 

Art.  8.  The  manner  of  exercising  parliamentary  control  over 
the  debts  of  the  state  will  be  defined  by  a  special  statute. 

Art.  9.  The  control  of  the  whole  state  administration  as 
regards  finances;  the  examination  of  the  accounts  of  the  state; 
the  annual  submission  to  the  Sejm  of  its  motion  for  the  granting 
or  refusing  of  its  absolutorium  to  the  Government,  are  in  the 
hands  of  the  Supreme  Board  of  Control,  which  is  organized 
on  the  basis  of  collegiality  and  judicial  independence  of  its  mem- 
bers, the  latter  being  removable  only  by  a  vote  of  the  Sejm  rep- 
resenting a  majority  of  three-fifths  of  those  actually  voting. 
The  organization  of  the  Supreme  Board  of  Control  and  its 
method  of  procedure  will  be  defined  in  detail  by  a  special  statute. 

The  President  of  the  Supreme  Board  of  Control  enjoys  a 
position  equal  to  that  of  a  Minister,  but  he  is  not  a  member  of 
the  Council  of  Ministers  and  is  directly  responsible  to  the  Sejm 
for  the  exercise  of  his  office  and  for  the  officials  who  are  his  sub- 
ordinates. 

Art.  10.  Measures  can  originate  either  with  the  government 
or  with  the  Sejm.  Motions  and  bills  which  involve  expenditure 
from  the  state  treasury  must  state  the  manner  of  their  raising 
and  expenditure. 


POLAND  407 

Art.  11.  The  Sejm  is  composed  of  deputies  elected  for  a  term 
of  five  years  to  be  counted  from  the  day  of  the  opening  of  the 
Sejm,  by  secret,  direct,  equal,  and  proportional  voting. 

Art.  12.  The  right  to  vote  belongs  to  every  Polish  citizen 
without  distinction  of  sex,  who,  on  the  day  of  the  proclamation 
of  the  elections,  is  twenty-one  years  of  age,  is  in  full  possession 
of  civil  rights,  and  is  a  resident  of  the  electoral  district  at  least 
from  the  day  preceding  the  proclamation  of  the  elections  in  the 
Journal  of  Laws.  The  right  to  vote  can  be  exercised  only  in 
person.  Members  of  the  army  in  active  service  do  not  possess 
the  right  to  vote. 

Art.  13.  Every  citizen  having  the  right  to  vote  is  eligible 
for  election  to  the  Sejm,  independently  of  his  place  of  residence, 
if  he  is  at  least  twenty-five  years  of  age,  not  excepting  members 
of  the  army  in  active  service. 

Art.  14.  Citizens  convicted  of  offenses  which  the  law  of 
elections  may  define  as  involving  temporary  or  permanent  loss 
of  the  right  to  vote,  of  eligibility,  or  of  being  a  deputy,  may  not 
enjoy  the  electoral  right. 

Art.  15.  Administrative,  revenue,  and  judicial  officials  of  the 
state  may  not  be  elected  in  the  districts  in  which  they  are  per- 
forming their  official  duties.  This  rule  does  not  apply  to  offi- 
cials employed  in  the  central  departments. 

Art.  16.  State  and  self-government  employees  obtain  leaves 
of  absence  at  the  moment  of  being  elected  deputies.  This  rule 
does  not  apply  to  ministers,  under-secretaries  of  state,  and  pro- 
fessors in  academic  schools.  The  years  spent  in  the  exercise 
of  the  duties  of  a  deputy  are  considered  as  years  of  service. 

Art.  17.  A  deputy  loses  his  seat  on  being  appointed  to  a 
paid  office  of  the  state.  This  rule  does  not  apply  to  appoint- 
ment as  minister,  under-secretary  of  state,  or  professor  in  an 
academic  school. 

Art.  18.  The  law  of  elections  will  define  the  manner  of  elect- 
ing deputies  to  the  Sejm. 

Art.  19.  The  validity  of  unprotested  elections  is  verified  by 
the  Sejm.  The  validity  of  protested  elections  is  decided  upon 
by  the  Supreme  Court. 

Art.  20.  The  deputies  are  representatives  of  the  whole  na- 
tion and  are  not  bound  by  any  instructions  given  by  the  voters. 

The  deputies  make  to  the  Marshal  the  following  vow  in  the 
presence  of  the  Chamber:  "I  do  solemnly  vow,  as  deputy  to  the 
Sejm  of  the  Republic  of  Poland,  to  work  honestly,  according  to 


408       NEW  CONSTITUTIONS  OF  EUROPE 

the  best  of  my  understanding  and  in  conformity  with  my  con- 
science, for  the  sole  good  of  the  Polish  State  as  a  whole." 

Art.  21.  Deputies  cannot  be  made  responsible,  either  during 
their  term  of  office  or  after  it  has  expired,  for  their  activities  in 
or  out  of  the  Sejm  appertaining  to  the  exercise  of  their  office  as 
deputies.  For  their  speeches,  utterances,  and  manifestations  in 
the  Sejm,  deputies  are  responsible  only  to  the  Sejm.  For  viola- 
tion of  the  rights  of  a  third  person,  they  may  be  made  to  answer 
before  a  court  of  law,  if  the  judicial  authority  obtains  the  con- 
sent of  the  Sejm  thereto. 

Criminal,  penal-administrative,  or  disciplinary  proceedings 
instituted  against  a  deputy  before  his  election,  may,  at  the  de- 
mand of  the  Sejm,  be  suspended  until  the  expiration  of  his  term 
of  office. 

Prescription  in  criminal  proceedings  against  a  deputy  does 
not  run  while  he  retains  his  office.  While  he  retains  his  office, 
a  deputy  may  not,  without  the  permission  of  the  Sejm,  be  made 
to  answer  before  a  criminal  court,  penal-administrative  author- 
ity, or  a  disciplinary  court,  or  be  deprived  of  his  freedom.  If  a 
deputy  is  caught  in  the  act  of  committing  a  common  felony, 
and  if  his  arrest  is  necessary  to  insure  the  administration  of 
justice,  or  to  avert  the  consequences  of  the  offense,  the  court 
is  bound  to  notify  immediately  the  Marshal  of  the  Sejm  in  order 
to  obtain  the  consent  of  the  Sejm  to  his  arrest  and  to  further 
criminal  proceedings.  Upon  demand  of  the  Marshal,  the  ar- 
rested deputy  must  be  liberated  at  once. 

Art.  22.  A  deputy  may  not,  either  in  his  own  name  or  in  the 
name  of  another,  buy,  or  acquire  the  lease  of,  any  real  property 
of  the  state,  contract  for  public  supplies  or  government  works, 
or  obtain  from  the  government  any  concessions  or  other  personal 
benefits.  A  deputy  is  also  debarred  from  receiving  from  the 
government  any  decorations  other  than  military. 

Art.  23.  A  deputy  may  not  be  the  responsible  editor  of  a 
periodical  publication. 

Art.  24.  The  deputies  receive  compensation  the  amount 
of  which  is  determined  by  the  standing  orders,  and  are  entitled 
to  the  free  use  of  the  state  means  of  communication  for  travel- 
ling over  the  whole  territory  of  the  Republic. 

Art.  25.  The  President  of  the  Republic  convokes,  opens, 
adjourns,  and  closes  the  Sejm  and  Senate.  The  Sejm  must  be 
convoked  to  assemble  on  the  third  Tuesday  after  election  day, 
and  every  year,  at  the  latest  in  October,  to  an  ordinary  session 


POLAND  409 

for  the  purpose  of  voting  the  budget,  the  numerical  strength 
and  recruiting  of  the  army,  and  other  current  affairs. 

The  President  of  the  Republic  may,  at  his  own  discretion, 
convoke  the  Sejm  to  an  extraordinary  session  at  any  time  and 
is  bound  to  do  this  within  two  weeks  upon  request  of  one-third 
of  the  total  number  of  deputies. 

Other  cases  in  which  the  Sejm  assembles  in  extraordinary 
session  are  determined  by  this  constitution. 

An  adjournment  requires  the  consent  of  the  Sejm,  if  previous 
adjournment  has  taken  place  during  the  same  ordinary  session, 
or  if  the  interruption  is  to  last  for  more  than  thirty  days. 

The  Sejm,  when  convoked  in  October  for  its  ordinary  session, 
may  not  be  closed  before  the  budget  has  been  voted. 

Art.  26.  The  Sejm  may  be  dissolved  by  its  own  vote,  passed 
by  a  majority  of  two-thirds  of  those  voting.  The  President 
of  the  Republic  may  dissolve  the  Sejm  with  the  consent  of  three- 
fifths  of  the  statutory  number  of  members  of  the  Senate  in  the 
presence  of  at  least  one-half  of  the  total  membership.1  In  both 
cases  the  Senate  is  automatically  dissolved  at  the  same  time. 

Elections  will  take  place  within  forty  days  from  the  date  of 
dissolution,  the  precise  date  to  be  determined  either  in  the  resolu- 
tion of  the  Sejm  or  in  the  message  of  the  President,  on  the  dis- 
solution of  the  Sejm. 

Art.  27.  The  deputies  exercise  all  their  rights  and  duties  in 
person. 

Art.  28.  The  Sejm  elects  from  among  its  members,  the  Mar- 
shal, his  deputies,  the  secretaries,  and  committees. 

The  Marshal  and  his  deputies  continue  in  office  after  the  dis- 
solution of  the  Sejm  until  the  new  Sejm  shall  have  elected  its 
officers. 

Art.  29.  The  standing  rules  of  the  Sejm  define  the  mode  and 
order  of  the  proceedings  of  the  Sejm,  the  type  and  number  of 
the  committees,  the  number  of  marshals  and  secretaries,  the 
rights  and  duties  of  the  Marshal.  The  employees  of  the  Sejm 
are  appointed  by  the  Marshal,  who  is  responsible  to  the  Sejm 
for  their  actions. 

Art.  30.  The  meetings  of  the  Sejm  are  public.  On  the  mo- 
tion of  the  Marshal,  of  a  Government  representative,  or  of  thirty 
deputies,  the  Sejm  may  vote  the  secrecy  of  its  meetings. 

Art.  31.     No  one  may  be  called  to  account  for  a  truthful 


'There  is  an  inconsistency  here  which  is  not  explained  by  the  Polish  text. 


410       NEW  CONSTITUTIONS  OF  EUROPE 

report  of  an  open  meeting  of  the  Sejm  or  a  committee  of  the 
Sejm. 

Art.  32.  A  vote  is  valid  only  when  carried  by  an  ordinary 
majority  in  the  presence  of  at  least  one-third  of  the  total  statu- 
tory number  of  deputies,  in  so  far  as  provisions  of  this  constitu- 
tion do  not  contain  other  rules. 

Art.  33.  The  deputies  have  the  right  of  addressing  interpel- 
lations to  the  Government  or  to  individual  ministers,  in  the 
manner  prescribed  by  the  standing  rules.  A  minister  is  bound 
to  answer,  within  six  weeks,  orally  or  in  writing,  or  submit  a 
statement  wherein  he  justifies  his  failure  to  give  an  answer  to 
the  point.  At  the  request  of  those  addressing  the  interpellation, 
the  answer  must  be  communicated  to  the  Sejm.  The  Sejm 
may  make  the  answer  the  subject  of  debate  and  vote. 

Art.  34.  The  Sejm  may  form  and  appoint  for  the  investiga- 
tion of  individual  cases,  extraordinary  committees  empowered 
to  hear  the  interested  parties,  as  well  as  to  summon  witnesses 
and  experts.  The  competence  and  powers  of  such  committees 
will  be  determined  by  the  Sejm. 

Art.  35.  Every  bill  passed  by  the  Sejm  will  be  submitted 
to  the  Senate  for  consideration.  If  the  Senate,  within  thirty 
days  from  the  day  on  which  a  passed  bill  has  been  delivered  to 
it,  does  not  raise  any  objections  to  the  bill,  the  President  of  the 
Republic  will  direct  the  publication  of  the  statute.  Upon  the 
motion  of  the  Senate,  the  President  of  the  Republic  may  direct 
the  publication  of  the  statute  before  the  lapse  of  the  thirty 
days. 

If  the  Senate  decides  to  alter  or  reject  a  bill  passed  by  the 
Sejm,  it  must  announce  this  to  the  Sejm  within  the  aforesaid 
thirty  days,  and  must  return  the  bill  to  the  Sejm  with  the  pro- 
posed changes  within  the  following  thirty  days. 

If  the  Sejm  approves  by  an  ordinary  majority,  or  rejects  by 
a  majority  of  eleven-twentieths  of  those  voting,  the  changes 
proposed  by  the  Senate,  the  President  of  the  Republic  will 
direct  the  publication  of  the  statute  in  the  wording  determined 
by  the  second  vote  of  the  Sejm. 

Art.  36.  The  Senate  is  composed  of  members  elected  by  the 
individual  Voyevodships,  by  universal,  secret,  direct,  equal,  and 
proportional  voting.  Every  Voyevodship  forms  one  constit- 
uency and  the  number  of  senators  is  equal  to  one-fourth  of  the 
number  of  members  of  the  Sejm,  in  proportion  to  the  number  of 
inhabitants.  The  right  of  electing  to  the  Senate  is  enjoyed  by 


POLAND  411 

every  elector  for  the  Sejm  who,  on  the  day  of  the  proclamation 
of  the  elections,  is  thirty  years  of  age  and  has  on  that  day  been 
a  resident  of  the  electoral  district  for  at  least  one  year;  the  right 
of  voting  is  not  lost  by  newly  settled  colonists  who  have  left 
their  former  place  of  residence,  availing  themselves  of  the  agra- 
rian reform;  neither  is  that  right  lost  by  workmen  who  have 
changed  their  place  of  residence  as  a  result  of  changing  their 
place  of  occupation,  or  by  the  state  officials  transferred  by  their 
superior  authorities.  Eligibility  is  enjoyed  by  every  citizen 
who  has  the  right  of  voting  for  the  Senate,  not  excluding  mem- 
bers of  the  army  in  active  service,  provided  that  citizen  is  forty 
years  of  age  on  the  day  of  the  proclamation  of  the  elections. 

The  term  of  the  Senate  begins  and  ends  with  the  term  of  the 
Sejm. 

No  one  may  be  at  the  same  time  a  member  of  the  Sejm  and 
of  the  Senate. 

Art.  37.  The  provisions  contained  in  Articles  14,  15,  16,  17, 
19,  20,  21,  22,  23,  24,  27,  28,  29,  30,  31,  32,  and  33  have  analogous 
application  to  the  Senate  and  to  its  members  respectively. 

Art.  38.  No  statute  may  be  in  opposition  to  this  constitu- 
tion or  violate  its  provisions. 

SECTION  m 
EXECUTIVE  POWER 

Art.  39.  The  President  of  the  Republic  is  elected  for  seven 
years  by  the  absolute  majority  of  the  votes  of  the  Sejm  and  the 
Senate  united  in  National  Assembly.  The  National  Assembly 
is  convoked  by  the  President  of  the  Republic  in  the  last  three 
months  of  his  seven  years'  term  of  office.  If  the  convocation 
has  not  taken  place  thirty  days  before  the  end  of  the  seven  years' 
term,  the  Sejm  and  the  Senate,  upon  the  invitation  of  the  Mar- 
shal of  the  Sejm  and  under  his  chairmanship,  unite  automati- 
cally in  National  Assembly. 

Art.  40.  Should  the  President  of  the  Republic  be  unable  to 
perform  the  duties  of  his  office,  or  should  the  office  of  the  Presi- 
dent of  the  Republic  become  vacant  through  death,  resignation, 
or  some  other  reason,  the  Marshal  of  the  Sejm  will  act  as  his 
deputy. 

Art.  41.  In  case  the  office  of  the  President  of  the  Republic 
becomes  vacant,  the  Sejm  and  the  Senate,  upon  the  invitation 
of  the  Marshal  of  the  Sejm  and  under  his  chairmanship,  at  once 


412       NEW  CONSTITUTIONS  OF  EUROPE 

unite  automatically  in  a  National  Assembly  for  the  purpose  of 
electing  a  President. 

Should  the  Sejm  be  dissolved  at  the  moment  when  the  office 
of  President  of  the  Republic  becomes  vacant,  the  Marshal  of  the 
Sejm  will  direct  without  delay  new  elections  to  the  Sejm  and 
the  Senate. 

Art.  42.  If  the  President  of  the  Republic  does  not  perform 
the  duties  of  his  office  for  three  months,  the  Marshal  will  with- 
out delay  convoke  the  Sejm  and  submit  to  its  decision  the  ques- 
tion whether  the  office  of  the  President  of  the  Republic  is  to  be 
declared  vacant. 

The  decision  to  declare  the  office  vacant  is  taken  by  a  majority 
of  three-fifths  of  the  votes  in  the  presence  of  at  least  one-half 
of  the  statutory  number  of  deputies;  that  is,  the  number  pre- 
scribed by  the  Law  of  Election. 

Art.  43.  The  President  of  the  Republic  exercises  the  execu- 
tive power  through  ministers  responsible  to  the  Sejm  and  through 
officials  subordinated  to  the  Ministers. 

Every  official  of  the  Republic  must  be  subordinate  to  a  minis- 
ter, who  is  responsible  to  the  Sejm  for  the  former's  actions. 

The  President  of  the  Council  of  Ministers  countersigns  the 
appointment  of  officials  of  the  civil  cabinet  of  the  President  of 
the  Republic,  and  is  responsible  for  their  actions  to  the  Sejm. 

Art.  44.  The  President  of  the  Republic  signs  the  statutes 
jointly  with  the  competent  ministers,  and  directs  the  publication 
of  the  statutes  in  the  Journal  of  the  Laws  of  the  Republic. 

The  President  of  the  Republic  has  the  right  to  issue,  for  the 
purpose  of  executing  the  statutes  and  with  reference  to  the 
statutory  authorization,  executive  ordinances,  directions,  orders 
and  prohibitions,  and  to  insure  their  execution  by  the  use  of 
force. 

The  ministers  and  the  authorities  subordinate  to  them  have 
the  same  right  in  their  respective  fields  of  jurisdiction. 

Every  governmental  act  of  the  President  of  the  Republic 
requires  for  its  validity  the  signature  of  the  President  of  the 
Council  of  Ministers  and  of  the  competent  minister,  who,  by 
countersigning  the  act,  assume  the  responsibility  therefor. 

Art.  45.  The  President  of  the  Republic  appoints  and  recalls 
the  President  of  the  Council  of  Ministers;  on  the  latter 's  motion 
he  appoints  and  recalls  ministers,  and  on  the  motion  of  the  Coun- 
cil of  Ministers  makes  appointments  to  the  civil  and  military 
offices  reserved  by  statutes. 


POLAND  413 

Art.  46.  The  President  of  the  Republic  is  at  the  same  time 
the  supreme  head  of  the  armed  forces  of  the  state,  but  he  may 
not  exercise  the  chief  command  in  time  of  war. 

The  Commander-in-Chief  of  the  armed  forces  of  the  state,  in 
case  of  war,  is  appointed  by  the  President  of  the  Republic,  on 
the  motion  of  the  Council  of  Ministers,  presented  by  the  min- 
ister of  military  affairs  who  is  responsible  to  the  Sejm  for  the 
acts  connected  with  the  command  in  time  of  war,  as  well  as  for 
all  affairs  of  military  direction. 

Art.  47.  The  right  to  reprieve  and  to  mitigate  punishment, 
and  to  destroy  the  consequences  of  criminal  conviction  in  in- 
dividual cases,  belongs  to  the  President  of  the  Republic. 

The  President  may  not  exercise  this  right  in  the  case  of  minis- 
ters convicted  upon  impeachment  by  the  Sejm. 

Amnesty  may  be  granted  only  by  statute. 

Art.  48.  The  President  of  the  Republic  in  foreign  relations, 
receives  diplomatic  representatives  of  foreign  states,  and  sends 
diplomatic  representatives  of  the  Polish  State  to  foreign  states. 

Art.  49.  The  President  of  the  Republic  makes  treaties  with 
other  states  and  brings  them  to  the  notice  of  the  Sejm. 

Commercial  and  customs  treaties,  as  well  as  treaties  which 
impose  a  permanent  financial  burden  on  the  state,  or  contain 
legal  rules  binding  on  the  citizens,  or  change  the  frontiers  of  the 
state,  also  alliances,  require  the  consent  of  the  Sejm. 

Art.  50.  The  President  of  the  Republic  may  declare  war  and 
conclude  peace  only  after  obtaining  the  consent  of  the  Sejm. 

Art.  51.  The  President  of  the  Republic  is  not  responsible 
either  to  Parliament  or  at  civil  law. 

For  betraying  the  country,  violating  the  constitution,  or  for 
criminal  offenses,  the  President  of  the  Republic  may  be  made 
responsible  only  by  the  Sejm  by  a  vote  of  a  majority  of  three- 
fifths  in  the  presence  of  at  least  one-half  of  the  statutory  num- 
ber of  deputies.  The  cause  is  heard  and  the  sentence  given  by 
the  Court  of  State,  according  to  the  rules  of  a  special  statute. 
Immediately  upon  his  impeachment  before  the  Court  of  State, 
the  President  of  the  Republic  is  suspended  from  office. 

Art.  52.  The  President  of  the  Republic  receives  a  salary  ac- 
cording to  the  rules  of  a  special  statute. 

Art.  53.  The  President  of  the  Republic  may  not  hold  any 
other  office  or  be  a  member  of  the  Sejm  or  the  Senate. 

Art.  54.  Before  assuming  office,  the  President  of  the  Republic 
takes  his  oath  in  the  National  Assembly,  in  the  following  terms: 


414       NEW  CONSTITUTIONS  OF  EUROPE 

"I  swear  to  Almighty  God,  One  in  the  Holy  Trinity,  and  I 
vow  to  Thee,  Polish  Nation,  that  while  holding  the  office  of 
President  of  the  Republic  I  will  keep  and  defend  faithfully  the 
laws  of  the  Republic  and  above  all  the  constitutional  law;  that 
I  shall  serve  devotedly,  with  all  my  power,  the  general  good  of 
the  nation;  that  I  will  avert,  watchfully,  from  the  state  all  evil  and 
danger;  that  I  will  guard  steadfastly  the  dignity  of  the  name  of 
Poland;  that  I  will  hold  justice  toward  all  citizens  without 
distinction  as  the  highest  virtue;  that  I  will  devote  myself  in- 
dividually to  the  duties  of  office  and  service.  So  help  me  God 
and  the  Holy  Martyrdom  of  His  Son.  Amen." 

Art.  55.  The  ministers  form  the  Council  of  Ministers  under 
the  chairmanship  of  the  President  of  the  Council  of  Ministers. 

Art.  56.  The  Council  of  Ministers  bears  the  joint  constitu- 
tional and  parliamentary  responsibility  for  the  general  direc- 
tion of  the  activities  of  the  government. 

Apart  from  that,  each  minister  is  individually  responsible, 
in  his  domain,  for  his  activities  in  office;  that  is,  as  well  for  their 
conformity  with  the  constitution  and  the  other  statutes  of  the 
state,  and  for  the  activities  of  the  subordinate  organs,  as  for 
the  direction  of  his  policies. 

Art.  57.  Within  the  same  limits,  the  ministers  are  jointly 
and  individually  responsible  for  the  governmental  acts  of  the 
President  of  the  Republic. 

Art.  58.  The  parliamentary  responsibility  of  the  ministers 
is  enforced  by  the  Sejm  by  an  ordinary  majority.  The  Council 
of  Ministers  or  any  individual  minister  will  resign  at  the  request 
of  the  Sejm. 

Art.  59.  The  constitutional  responsibility  of  the  ministers  and 
the  way  of  its  realization  will  be  determined  by  a  special  statute. 

The  decision  to  impeach  a  minister  can  be  made  only  in  the 
presence  of  at  least  one-half  the  statutory  number  of  deputies 
and  by  a  majority  of  three-fifths  of  the  votes  cast. 

The  causes  are  heard  and  judgment  is  passed  by  the  Court 
of  State.  A  minister  cannot  evade  his  constitutional  respon- 
sibility by  resigning  his  office.  Immediately  upon  his  impeach- 
ment, the  minister  is  suspended  from  office. 

Art.  60.  The  ministers  and  officials  delegated  by  them  have 
the  right  to  take  part  in  the  meetings  of  the  Sejm,  and  to  speak 
out  of  the  turn  of  those  figuring  on  the  list  of  speakers;  they 
may  take  part  in  the  vote  if  they  are  deputies. 

Art.  61.    The  ministers  may  not  hold  any  other  office  or 


POLAND  415 

participate  in  the  governing  or  controlling  bodies  of  societies 
and  institutions  which  work  for  profit. 

Art.  62.  Should  the  office  of  a  minister  be  held  by  a  provisory 
head  of  the  ministry,  he  will  be  subject  to  all  the  rules  concern- 
ing the  office  of  a  ministry.  The  President  of  the  Council  of 
Ministers  will,  in  case  of  need,  appoint  one  of  the  ministers  his 
deputy. 

Art.  63.  A  special  statute  will  determine  the  number,  com- 
petence, and  mutual  relation  of  the  Ministers,  as  well  as  the 
competence  of  the  Council  of  Ministers. 

Art.  64.  The  Court  of  State  is  composed  of  the  First  Presi- 
dent of  the  Supreme  Court  as  chairman,  and  of  twelve  members, 
eight  of  whom  are  elected  by  the  Sejm  and  four  by  the  Senate 
from  outside  their  own  membership. 

To  membership  in  the  Court  of  State  are  eligible  persons  who 
do  not  hold  any  State  office,  and  are  in  full  possession  of  civil 
rights. 

The  election  of  the  members  of  the  Court  of  State  is  carried 
out  by  the  Sejm  and  the  Senate  immediately  upon  the  election 
of  their  officers  for  the  whole  term  of  the  Sejm. 

Art.  65.  For  administrative  purposes,  the  Polish  State  will 
be  divided  by  statute  into  Voyevodships,  districts,  and  urban 
and  rural  communes,  which  will  at  the  same  time  be  the  units 
of  territorial  self-government. 

The  units  of  self-government  may  combine  into  unions  in 
order  to  accomplish  tasks  which  belong  to  the  domain  of  self- 
government. 

Such  unions  may  obtain  the  character  of  bodies  of  public 
law  only  by  special  statute. 

Art.  66.  The  administration  of  the  state  will  be  organized 
on  the  principle  of  decentralization,  organs  of  state  administra- 
tion in  the  individual  territorial  units  being,  as  far  as  possible, 
joined  in  one  official  body  under  one  superior,  and  on  the  prin- 
ciple that  within  the  limits  determined  by  statutes,  citizens 
elected  for  this  purpose  shall  participate  in  the  discharge  of  the 
duties  of  such  official  bodies. 

Art.  67.  The  right  of  determining  affairs  belonging  to  the 
domain  of  self-government  rests  with  elected  councils.  The 
executive  functions  of  Voyevodship  and  district  self-government 
rests  with  organs  formed  by  adding  to  boards  elected  by  rep- 
resentative bodies,  representatives  of  State  administrative 
authorities,  under  the  chairmanship  of  the  latter. 


416       NEW  CONSTITUTIONS  OF  EUROPE 

Art.  68.  A  special  statute  will  create,  in  addition  to  territorial 
self-government,  economic  self-government  for  the  individual 
fields  of  economic  life;  namely,  chambers  of  agriculture,  com- 
merce, industry,  arts  and  crafts,  hired  labor  and  others,  united 
into  a  Supreme  Economic  Council  of  the  Republic,  the  collab- 
oration of  which  with  state  authorities,  in  directing  economic 
life  and  in  the  field  of  legislative  proposals,  will  be  determined 
by  statutes. 

Art.  69.  The  sources  of  revenue  of  the  state  and  of  self- 
government  organizations  respectively,  will  be  strictly  delimi- 
nated  by  statutes. 

Art.  70.  The  state  will  exercise  supervision  over  self- 
government  activities  through  superior  self-government  boards; 
such  supervision  may,  however,  be  partially  delegated  by  statute 
to  administrative  courts. 

Statutes  will  determine  the  cases  in  which  decisions  of  self- 
government  organs  may  exceptionally  require  confirmation  by 
superior  self-government  organs  or  by  ministries. 

Art.  71.  An  appeal  from  decisions  of  state  and  self-govern- 
ment organs  will  be  allowed  only  to  one  superior  body,  unless 
other  provisions  are  made  by  statutes. 

Art.  72.  Statutes  will  put  into  effect  the  principle  that  from 
penal  decisions  of  administrative  authorities,  made  in  the  first 
instance,  the  parties  concerned  will  have  the  right  to  appeal 
to  the  competent  court. 

Art.  73.  For  the  purpose  of  passing  upon  the  legality  of 
administrative  acts  in  the  field  of  state,  as  well  as  of  self- 
government  administrative,  a  special  statute  will  create  admin- 
istrative courts,  basing  their  organization  on  the  cooperation 
of  (lay)  citizens  and  (professional)  judges,  and  culminating  in  a 
Supreme  Administrative  Court. 


SECTION  IV 
JUDICIARY 

Art.  74.  The  courts  administer  justice  in  the  name  of  the 
Republic  of  Poland. 

Art.  75.  The  organization,  jurisdiction,  and  procedure  of  all 
courts  will  be  defined  by  legislation. 

Art.  76.     The  President  of  the  Republic  appoints  the  judges, 


POLAND  417 

unless  a  different  provision  is  made  by  statute,  but  justices  of 
the  peace  are,  as  a  rule,  elected  by  the  population. 

Judicial  office  is  accessible  only  to  persons  who  possess  the 
qualifications  required  by  law. 

Art.  77.  In  the  exercise  of  their  judicial  office,  the  judges 
are  independent,  and  subject  only  to  statutes. 

Judicial  decisions  may  not  be  changed  either  by  the  legisla- 
tive power  or  by  the  executive  power. 

Art.  78.  A  judge  may  be  removed  from  office,  suspended 
from  office,  transferred  to  a  different  place  of  office,  or  pensioned, 
against  his  own  will,  by  judicial  decision  only,  and  only  in  cases 
provided  by  statute. 

This  rule  does  not  apply  in  the  case  of  the  transfer  of  a  judge 
to  a  different  place,  or  his  pensioning  owing  to  a  change  in  the 
organization  of  the  courts  decided  upon  by  statute. 

Art.  79.  Judges  may  not  be  criminally  prosecuted  or  be  de- 
prived of  their  freedom  without  the  previous  consent  of  the  court 
assigned  by  statute,  unless  they  are  caught  in  the  act,  but  even 
in  this  last  case  the  court  may  demand  that  the  arrested  judge 
be  freed  without  delay. 

Art.  80.  A  special  statute  will  define  the  peculiar  position 
of  the  judges,  their  rights  and  duties,  as  well  as  their  compensa- 
tion. 

Art.  81.  The  courts  have  not  the  right  to  inquire  into  the 
validity  of  duly  promulgated  statutes. 

Art.  82.  The  hearings  before  a  determining  court,  as  well 
in  civil  as  in  criminal  cases,  are  public,  except  when  statutes 
provide  otherwise. 

Art.  83.  Courts  with  juries  will  be  called  upon  to  determine 
cases  of  felonies  entailing  more  severe  punishment,  and  cases 
of  political  offenses.  Statutes  will  define  in  detail  the  jurisdic- 
tion of  courts  with  juries,  the  organization  of  such  courts,  and 
their  procedure. 

Art.  84.  A  Supreme  Court  for  judicial  causes,  civil  and  crim- 
inal, is  hereby  created. 

Art.  85.  Special  statutes  will  define  the  organization  of 
military  courts,  their  jurisdiction,  procedure,  and  the  rights  and 
duties  of  the  members  of  such  courts. 

Art.  86.  A  special  Competence  Court1  will  be  created  by  a 
statute  to  determine  conflicts  of  jurisdiction  between  the  admin- 
istrative authorities  and  the  courts. 

tribunal  of  ConEicts. 


418       NEW  CONSTITUTIONS  OF  EUROPE 

SECTION  V 
GENERAL  DUTIES  AND  RIGHTS  OF  CITIZENS 

Art.  87.  A  Polish  citizen  may  not  be  at  the  same  time  a 
citizen  of  another  state. 

Art.  88.     Polish  citizenship  is  acquired: 

(1)  By  birth  if  the  parents  are  Polish  citizens. 

(2)  By  naturalization  granted  by  the  competent  state  au- 
thority. 

Special  statutes  define  other  rules  as  to  Polish  citizenship, 
its  acquisition  and  loss. 

Art.  89.  Fidelity  to  the  Republic  of  Poland  is  the  first  duty 
of  a  citizen. 

Art.  90.  Every  citizen  has  the  duty  of  respecting  and  obey- 
ing the  constitution  of  the  state  and  other  valid  laws  and  or- 
dinances of  the  state  and  self-government  authorities. 

Art.  91.  All  citizens  are  subject  to  military  service;  the  char- 
acter and  manner,  order  and  term  of  service,  exemption  from 
such  duty,  and  any  duties,  contributions  or  services  for  military 
purposes,  will  be  defined  by  legislation. 

Art.  92.  It  is  the  duty  of  all  citizens  to  submit  to  any  pub- 
lic burdens,  services,  and  duties  imposed  by  virtue  of  statute. 

Art.  93.  All  citizens  are  bound  to  respect  legitimate  author- 
ity and  to  facilitate  the  performance  of  its  duties,  as  well  as  to 
perform  conscientiously  public  duties  to  which  they  may  be 
appointed  by  the  nation  or  the  proper  authority. 

Art.  94.  It  is  the  duty  of  citizens  to  bring  up  their  children 
as  righteous  citizens  of  the  mother  country,  and  to  secure  to 
them  at  least  elementary  education. 

This  duty  will  be  defined  more  in  detail  by  a  special  statute. 

Art.  95.  The  Republic  of  Poland  guarantees  on  its  territory, 
to  all,  without  distinction  of  extraction,  nationality,  language, 
race,  or  religion,  full  protection  of  life,  liberty,  and  property. 

Foreigners  enjoy,  on  condition  of  reciprocity,  rights  equal 
to  those  of  citizens  of  the  Polish  State,  and  have  duties  equal  to 
those  of  such  citizens,  unless  statutes  expressly  require  Polish 
citizenship. 

Art.  96.  All  citizens  are  equal  before  the  law.  Public  offices 
are  accessible  in  equal  measure  to  all,  on  conditions  prescribed 
by  the  law. 

The  Republic  of  Poland  does  not  recognize  privileges  of  birth 
or  of  estate,  or  any  coats  of  arms,  family  or  other  titles,  with 


POLAND  419 

the  exception  of  those  of  learning,  office,  or  profession.  A  Pol- 
ish citizen  may  not  accept  foreign  titles  or  orders  without  the 
permission  of  the  President  of  the  Republic. 

Art.  97.  Limitations  of  personal  liberty,  especially  search  of 
person  and  arrest,  are  admissible  only  in  cases  prescribed  by 
law,  and  in  the  manner  defined  by  statutes,  by  virtue  of  an  or- 
der from  judicial  authorities. 

In  case  a  judicial  order  cannot  be  issued  immediately,  it 
should  be  served,  at  the  latest,  within  forty-eight  hours,  with 
a  statement  of  the  reasons  of  the  search  or  arrest. 

Arrested  persons  who  have  not  been  served  within  forty-eight 
hours  with  a  written  statement  of  the  cause  of  arrest,  signed 
by  a  judicial  authority,  regain  their  freedom  at  once. 

The  means  of  compulsory  service  by  which  the  administra- 
tive authorities  may  enforce  their  orders  are  determined  in 
statutes. 

Art.  98.  No  one  may  be  deprived  of  the  court  to  which  he  is 
subject  by  law.  Exceptional  courts  are  admissible  only  in 
cases  determined  by  statutes,  which  statutes  must  have  been 
issued  before  the  offense  was  committed.  A  citizen  may  be 
prosecuted  and  punishment  inflicted  only  by  virtue  of  a  statute 
actually  in  force.  Punishments  involving  physical  suffering 
are  not  permitted,  and  no  one  may  be  subjected  to  such  punish- 
ment. 

No  statute  may  deprive  a  citizen  of  access  to  the  courts  for 
the  purpose  of  demanding  reparation  for  injury  or  damage. 

Art.  99.  The  Republic  of  Poland  recognizes  all  property, 
whether  belonging  personally  to  individual  citizens  or  collec- 
tively to  associations  of  citizens,  institutions,  self-government 
organizations,  or  the  state  itself,  as  one  of  the  most  important 
bases  of  social  organization  and  legal  order,  and  guarantees  to 
all  citizens,  institutions,  and  associations,  protection  of  their 
property,  permitting  only  in  cases  provided  by  a  statute  the 
abolition  or  limitation  of  property,  whether  personal  or  collec- 
tive, for  reasons  of  higher  utility,  against  compensation.  Only 
a  statute  may  determine  to  what  extent  property,  for  reasons 
of  public  utility,  shall  form  the  exclusive  property  of  the  state, 
and  in  how  far  rights  of  citizens  and  of  their  legally  recognized 
associations  to  use  freely  land,  waters,  minerals,  and  other  treas- 
ures of  nature,  may  be  subject  to  limitations  for  public  reasons. 

The  land,  as  one  of  the  most  important  factors  of  the  existence 
of  the  nation  and  the  state,  may  not  be  the  subject  of  unre- 


420       NEW  CONSTITUTIONS  OF  EUROPE 

stricted  transfer  (commerce).  Statutes  will  define  the  right  of 
the  state  to  buy  up  land  against  the  will  of  the  owners,  and  to 
regulate  the  transfer  of  land,  applying  the  principle  that  the 
agrarian  organization  of  the  Republic  of  Poland  should  be  based 
on  agricultural  units  capable  of  regular  production  and  forming 
private  property. 

Art.  100.  The  home  and  hearth  of  the  citizen  are  inviolable. 
Infringements  of  this  right  by  entering  the  home,  searching  it 
and  taking  papers  or  movables  may,  apart  from  the  necessity 
of  executing  administrative  orders  based  on  a  specific  statutory 
authorization,  take  place  only  by  order  of  judicial  authorities, 
in  the  manner  and  in  the  cases  prescribed  by  the  protection 
statute. 

Art.  101.  Every  citizen  has  the  liberty  of  selecting  on  the 
territory  of  the  state  his  place  of  residence  and  abode,  to  move 
about  and  to  emigrate,  as  well  as  to  choose  his  occupation  and 
profession,  and  to  transport  his  property. 

These  rights  may  be  restricted  only  by  statute. 

Art.  102.  Labor  is  the  main  basis  of  the  wealth  of  the  Repub- 
lic, and  should  remain  under  the  special  protection  of  the  state. 

Every  citizen  has  the  right  to  state  protection  for  his  labor, 
and  in  case  of  lack  of  work,  illness,  accident,  or  debility,  to  the 
benefits  of  social  insurance  which  will  be  determined  by  a  special 
statute. 

The  state  has  the  duty  of  making  accessible  also  moral  guid- 
ance and  religious  consolation  to  citizens  under  its  immediate 
care  in  public  institutions,  such  as  educational  institutions,  bar- 
racks, hospitals,  prisons,  and  charitable  homes. 

Art.  103.  Children  without  sufficient  parental  care,  neglected 
with  respect  to  education,  have  the  right  to  state  care  and  aid 
within  the  limits  to  be  determined  by  statute. 

Parents  may  not  be  deprived  of  authority  over  their  children 
except  by  judicial  decision. 

Special  statutes  determine  the  protection  of  motherhood. 

Children  under  fifteen  years  of  age  may  not  be  wage-earners; 
neither  may  women  be  employed  at  night,  or  young  laborers 
be  employed  in  industries  detrimental  to  their  health. 

Permanent  employment  of  children  and  young  people  of 
school  age  for  wage-earning  purposes  is  forbidden. 

Art.  104.  Every  citizen  has  the  right  to  express  freely  his 
ideas  and  convictions  in  so  far  as  he  does  not  thereby  violate 
legal  provisions. 


POLAND  421 

Art.  105.  Freedom  of  the  press  is  guaranteed.  Censorship, 
or  the  system  of  licensing  printed  matter,  may  not  be  intro- 
duced. Daily  papers  and  other  matter  printed  in  the  country 
may  not  be  debarred  from  the  mails,  nor  may  their  dissemina- 
tion on  the  territory  of  the  Republic  be  restricted. 

A  special  statute  will  define  the  responsibility  for  the  abuse 
of  this  freedom. 

Art.  106.  The  secrecy  of  letters  and  other  correspondence 
may  be  infringed  upon  only  in  cases  provided  by  law. 

Art.  107.  Citizens  have  the  right  of  presenting  individual 
or  collective  petitions  to  all  state  and  self-government  represen- 
tative bodies  and  public  authorities. 

Art.  108.  Citizens  have  the  right  of  combining,  meeting, 
and  forming  associations  and  unions. 

The  exercise  of  these  rights  is  defined  by  statutes. 

Art.  109.  Every  citizen  has  the  right  of  preserving  his  na- 
tionality and  developing  his  mother-tongue  and  national  char- 
acteristics. 

Special  statutes  of  the  state  will  guarantee  to  minorities  in 
the  Polish  State  the  full  and  free  development  of  their  national 
characteristics,  with  the  assistance  of  autonomous  minority 
unions,  endowed  with  the  character  of  public  law  organizations, 
within  the  limits  of  unions  of  general  self-government. 

The  state  will  have,  in  regard  to  their  activity,  the  right  of 
control  and  of  supplementing  their  financial  means  in  case  of 
need. 

Art.  110.  Polish  citizens  belonging  to  national,  religious,  or 
linguistic  minorities  have  the  same  right  as  other  citizens  of 
founding,  supervising,  and  administering  at  their  own  expense, 
charitable,  religious,  and  social  institutions,  schools  and  other 
educational  institutions,  and  of  using  freely  therein  their  lan- 
guage, and  observing  the  rules  of  their  religion. 

Art.  111.  Freedom  of  conscience  and  of  religion  is  guaran- 
teed to  all  citizens.  No  citizen  may  suffer  a  limitation  of  the 
rights  enjoyed  by  other  citizens,  by  reason  of  his  religion  and 
religious  convictions. 

All  inhabitants  of  the  Polish  State  have  the  right  of  freely 
professing  their  religion  in  public  as  well  as  in  private,  and  of 
performing  the  commands  of  their  religion  or  rite,  in  so  far  as 
this  is  not  contrary  to  public  order  or  public  morality. 

Art.  112.  Religious  freedom  may  not  be  used  in  a  way  con- 
trary to  statutes.  No  one  may  evade  the  performance  of  public 


422       NEW  CONSTITUTIONS  OF  EUROPE 

duties  by  reason  of  his  religious  beliefs.  No  one  may  be  com- 
pelled to  take  part  in  religious  activities  or  rites  unless  he  is 
subject  to  parental  or  guardians'  authority. 

Art.  113.  Every  religious  community  recognized  by  the 
state  has  the  right  of  organizing  collective  and  public  services; 
it  may  conduct  independently  its  internal  affairs;  it  may  possess 
and  acquire  movable  and  immovable  property,  administer  and 
dispose  of  it;  it  remains  in  possession  and  enjoyment  of  its  en- 
dowments and  funds,  and  of  religious,  educational,  and  charita- 
ble institutions.  No  religious  community  may,  however,  be 
in  opposition  to  the  statutes  of  the  state. 

Art.  114.  The  Roman  Catholic  religion,  being  the  religion 
of  the  preponderant  majority  of  the  nation,  occupies  in  the  state 
the  chief  position  among  enfranchised  religions.  The  Roman 
Catholic  Church  governs  itself  under  its  own  laws.  The  rela- 
tion of  the  state  to  the  church  will  be  determined  on  the  basis 
of  an  agreement  with  the  Apostolic  See,  which  is  subject  to 
ratification  by  the  Sejm. 

Art.  115.  The  churches  of  the  religious  minorities  and  other 
legally  organized  religious  communities  govern  themselves  by 
their  own  laws,  which  the  state  may  not  refuse  to  recognize 
unless  they  contain  rules  contrary  to  law. 

The  relation  of  the  state  to  such  churches  and  religions  will 
be  determined  from  time  to  time  by  legislation  after  an  under- 
standing with  their  legal  representatives. 

Art.  116.  The  recognition  of  a  new,  or  hitherto  not  legally 
recognized  religion,  may  not  be  refused  to  religious  communities 
whose  institutions'  teachings  and  organization  are  not  contrary 
to  public  order  or  public  morality. 

Art.  117.  Learned  investigations  and  the  publication  of  their 
results  are  free.  Every  citizen  has  the  right  to  teach,  to  found 
a  school  or  educational  institution,  and  to  direct  it  if  he  complies 
with  the  requirements  laid  down  by  statutes  concerning  the 
qualifications  of  teachers,  the  safety  of  the  child  entrusted  to 
him,  and  a  loyal  attitude  toward  the  state.  All  schools  and 
educational  institutions,  public  as  well  as  private,  are  subject 
to  supervision  by  state  authorities  within  the  limits  prescribed 
by  statutes. 

Art.  118.  Within  the  limits  of  the  elementary  school,  in- 
struction is  compulsory  for  all  citizens  of  the  state.  A  statute 
will  define  the  period,  limits,  and  manner  of  acquiring  such  edu- 
cation. 


POLAND  423 

Art.  119.  Teaching  in  state  and  self-government  schools 
is  gratuitous. 

The  state  will  insure  to  pupils  who  are  exceptionally  able, 
but  not  well-to-do,  scholarships  for  their  maintenance  in  secon- 
dary and  academic  schools. 

Art.  120.  Instruction  in  religion  is  compulsory  for  all  pupils 
in  every  educational  institution,  the  curriculum  of  which  in- 
cludes instruction  of  youth  under  eighteen  years  of  age,  if  the 
institution  is  maintained  wholly  or  in  part  by  the  state,  or 
by  self-government  bodies.  The  direction  and  supervision  of 
religious  instruction  hi  schools  belongs  to  the  respective  religious 
communities,  reserving  to  the  state  educational  authorities  the 
right  of  supreme  supervision. 

Art.  121.  Every  citizen  has  the  right  to  compensation  for 
damage  inflicted  upon  him  by  civil  or  military  organs  of  state 
authorities,  by  an  official  act  not  in  accordance  with  the  right 
or  duties  of  the  service.  The  state  is  responsible  for  the  dam- 
age, jointly  with  the  guilty  organs;  action  may  be  brought 
against  the  state  and  against  officials,  independently  of  any 
permission  by  a  public  authority.  Communes  and  other  self- 
government  bodies,  as  well  as  their  organs,  are  responsible  in 
the  same  manner. 

Special  statutes  will  define  the  application  of  this  principle. 

Art.  122.  The  rules  as  to  citizens'  rights  apply  also  to  per- 
sons belonging  to  the  armed  force.  Special  military  statutes 
define  exceptions  to  this  principle. 

Art.  123.  Armed  force  may  be  used  only  by  request  of  a 
civil  authority  under  strict  obedience  to  statutes,  for  the  pur- 
pose of  putting  down  disturbances,  or  of  enforcing  the  execution 
of  legal  rules.  Exceptions  to  this  principle  are  admissible  only 
by  virtue  of  statutes  on  the  state  of  siege  and  of  war. 

Art.  124.  A  temporary  suspension  of  citizen's  rights;  of 
personal  liberty  (Article  97),  of  inviolability  of  home  and  hearth 
(Article  100),  of  freedom  of  the  press  (Article  105),  of  secrecy 
of  correspondence  (Article  106),  of  the  right  of  combining,  meet- 
ing, and  forming  associations  (Article  108),  may  take  place  for 
the  whole  territory  of  the  state  or  for  localities  in  which  it  may 
prove  necessary  for  reasons  of  public  safety. 

Such  suspension  may  be  directed  only  by  the  Council  of  Min- 
isters, by  permission  of  the  President  of  the  Republic,  during 
a  war  or  when  an  outbreak  of  war  threatens,  as  well  as  in  case 
of  internal  disturbances  or  of  widespread  conspiracies  which 


424       NEW  CONSTITUTIONS  OF  EUROPE 

bear  the  character  of  high  treason  and  threaten  the  constitution 
of  the  state  or  the  safety  of  the  citizens. 

Such  a  decision  of  the  Council  of  Ministers,  if  made  while 
the  Sejm  is  in  session,  must  be  immediately  submitted  to  the 
Sejm  for  confirmation.  If  such  a  decision,  to  apply  on  a  terri- 
tory which  comprises  more  than  one  Voyevodship  be  issued  dur- 
ing an  interval  between  meetings  of  the  Sejm,  the  Sejm  meets 
automatically  within  eight  days  from  the  publication  of  the 
decision  in  order  to  take  the  proper  step. 

Should  the  Sejm  refuse  confirmation,  the  state  of  siege  im- 
mediately loses  its  binding  force.  If  the  Council  of  Ministers 
directs  a  state  of  siege  after  the  expiration  of  the  term  of  the 
Sejm,  or  after  dissolution  of  the  Sejm,  the  decision  of  the  Govern- 
ment must  be  submitted  to  the  newly  elected  Sejm  without  de- 
lay, at  its  first  meeting. 

These  principles  will  be  defined  more  in  detail  by  a  statute 
on  the  state  of  siege. 

A  statute  on  the  state  of  war  will  define  the  principles  of  a 
temporary  suspension  of  the  above  enumerated  rights  of  citizens 
in  time  of  war  on  the  territory  affected  by  war  operations. 

Art.  125.  A  change  in  the  constitution  may  be  voted  only  in 
the  presence  at  least  of  one-half  the  statutory  number  of  Dep- 
uties or  Senators  respectively,  by  a  majority  of  two-thirds  of 
the  votes. 

The  motion  to  change  the  constitution  must  be  signed  by 
at  least  one-fourth  of  the  total  statutory  number  of  Deputies 
and  notice  of  such  a  motion  must  be  given  at  least  fifteen  days 
in  advance. 

The  second  Sejm,  which  will  meet  on  the  basis  of  this  consti- 
tution, may  revise  this  constitutional  law  by  its  own  vote,  taken 
by  a  majority  of  three-fifths,  in  the  presence  of  at  least  one-half 
the  statutory  number  of  Deputies. 

Every  twenty-five  years  after  the  adoption  of  the  present 
constitution,  revision  shall  take  place  following  the  decision 
of  the  Sejm  and  the  Senate,  united  in  a  National  Assembly  and 
voting  by  an  ordinary  majority.1 

Art.  126.  This  constitution  has  binding  force  from  the  day 
of  its  publication,  or  in  so  far  as  the  realization  of  its  individual 

^This  whole  article  is  omitted  in  the  official  draft  issued  by  the  Polish  Informa- 
tion Bureau.  The  last  paragraph  (relating  to  revision  every  twenty-five  years) 
does  not  appear  in  the  Current  History  translation  (May,  1921).  It  is  found, 
however,  in  Potulicki,  Constitution  de  la  republique  de  Pologne  du  17  Mars  1921, 
p.  80  (Paris,  1921). 


POLAND  425 

provisions  is  dependent  on  the  issuing  of  special  statutes  on  the 
day  of  their  going  into  force. 

All  legal  rules  and  institutions  now  in  force,  which  do  not 
agree  with  the  rules  of  this  constitution,  will,  within  a  year  from 
the  voting  of  this  constitution,  be  submitted  to  the  legislative 
body  in  order  to  be  brought  into  harmony  with  the  constitution 
by  legislation. 


Wilson's 

"thirteenth 

point" 


The  Danzig 
corridor 


Contro- 
versies at 
the  Peace 
Conference 


CHAPTER  XVII 
THE  FREE  CITY  OF  DANZIG 

1.    HISTORICAL  NOTE 

IT  WAS  the  ambition  of  the  Poles  that  the  independent 
Polish  State  to  be  erected  at  the  Peace  Conference  should 
include  more  than  "the  territories  inhabited  by  indisput- 
ably Polish  populations."  President  Wilson's  "  thirteenth 
point"  stipulated  that  the  new  state  "should  be  assured  a 
free  and  secure  access  to  the  sea, "  and  it  was  the  hope  of 
the  Poles  that  they  would  be  allotted  the  whole  of  a  wide 
corridor  along  the  Vistula  that  the  Germans  had  for  many 
years  been  attempting  to  colonize. 

This  corridor  had  been  so  completely  Germanized  that 
a  strip  only  fifty  miles  across  could  be  given  to  Poland  on 
ethnic  grounds.  In  Danzig,  the  coastal  end  of  the  cor- 
ridor, the  Polish  population  had  been  reduced  until  the 
Poles  numbered  but  10  per  cent,  of  the  total  of  ITO^OO.1 
The  solution  of  the  Peace  Conference,  therefore,  was  to 
create  a  Free  City  under  the  protection  of  the  League  of 
Nations.  This  was  in  part  a  return  to  the  status  that 
Danzig  had  enjoyed  from  1454  to  1793.  It  was  then  a 
free  republic,  voluntarily  united  to  Poland  and  under 
Polish  sovereignty.  It  had  autonomy  in  local  affairs, 
although  Poland  had  the  right  to  defend  it  from  attack, 
and,  on  "great  occasions,"  the  City  was  represented  in 
the  Polish  diet. 

The  decision  of  the  Peace  Conference  was  reached  only 
after  the  Conference  had  considered  alternative  proposals. 
The  Commission  on  Polish  affairs,  appointed  by  the  Su- 

1Bowman,  The  New  World  Problems,  p.  337. 

426 


CITY  OF  DANZIG 


427 


preme  Council,  proposed  that  the  corridor  to  the  Baltic 
should  include  Danzig  and  a  narrow  belt  of  German- 
speaking  territory  around  Marienwerder,  on  the  east  bank 
of  the  Vistula.  In  the  case  of  Danzig,  the  Commission 
thought  that  "the  only  clean-cut  solution  of  the  problem 
was  to  annex  the  city  outright  to  Poland."  Mr.  Lloyd 
George,  however,  was  dissatisfied.  He  believed  that 
"with  the  frontiers  proposed  the  number  of  Germans  to 
be  incorporated  in  Poland  was  dangerously  large,  and 
ought,  if  ever  possible,  to  be  reduced.  As  a  result  of  a 
first  intervention  on  his  part  the  Supreme  Council  de- 
cided that  the  Marienwerder  district  should  not  be  trans- 
ferred to  Poland  outright,  but  should  also  be  subjected  to 
a  plebiscite. 

"Soon  after,  the  British  Prime  Minister  proposed  a 
second  change,  of  much  greater  consequence  to  the  Poles, 
in  the  matter  of  Danzig.  President  Wilson  was  persuaded 
to  agree  to  his  suggestions;  and  M.  Clemenceau,  quite 
certainly  against  his  own  inclinations,  was  induced  to 
acquiesce.  The  upshot  was  an  entirely  new  plan,  which 
was  intended  to  insure  Poland's  economic  interests  in  the 
port  of  Danzig  and  at  the  same  time  to  avoid  the  incon- 
venience of  annexing  that  German-speaking  city  to 
Poland.  According  to  this  plan,  Danzig  and  the  small 
adjacent  district  were  to  form  a  free  city  under  the  pro- 
tection of  the  League  of  Nations."1 

The  new  semi-independent  state  is  one  of  the  most  in- 
teresting political  creations  of  the  Peace  Treaty.  It  is  one 
of  the  few  cases  in  which  the  Peace  Conference  assumed 
responsibility  for  passing  on  constitutions  and  providing 
governmental  tutelage.2  By  Article  100  of  the  Peace 
Treaty,  "Germany  renounces  in  favor  of  the  Principal 
Allied  and  Associated  Powers  all  rights  and  title  over  the 

JR.  H.  Lord,  "Poland,"  in  House  and  Seymour,  What  Really  Happened  at 
Paris,  p.  79  (New  York,  1921). 

*See  above,  p.  5,  note  1 ;  p.  88,  note  *. 


Provisions 
of  Peace 
Treaty  in  re 
Danzig 


428       NEW  CONSTITUTIONS  OF  EUROPE 

territory  comprised  within"  certain  specified  limits. 
This  territory  and  the  city  of  Danzig  are  established  as  a 
Free  City,  "under  the  protection  of  the  League  of  Na- 
tions".1 With  regard  to  the  government  of  the  city  the 
Treaty  provided: 

A  constitution  for  the  Free  City  of  Danzig  shall  be  drawn  up 
by  the  duly  appointed  representatives  of  the  Free  City  in  agree- 
ment with  a  High  Commissioner  to  be  appointed  by  the  League 
of  Nations.  This  constitution  shall  be  placed  under  the  guaran- 
tee of  the  League  of  Nations. 

The  High  Commissioner  will  also  be  entrusted  with  the  duty 
of  dealing  in  the  first  instance  with  all  differences  arising  between 
Poland  and  the  Free  City  of  Danzig  in  regard  to  this  Treaty  or 
any  arrangements  or  agreements  made  thereunder. 

The  High  Commissioner  shall  reside  at  Danzig.2 

Subsequent  provisions  of  the  treaty  dealt  with  Poland's 
access  to  the  sea;  with  the  conduct  of  Danzig's  foreign 
relations  by  Poland ;  and  with  such  matters  as  nationality, 
property,  and  finance.3 

Constituent          A  constituent  assembly,  composed  of  one  hundred  and 
Assembly  of      twenty  members,  was  elected  in  May,  1920,  on  a  basis  of 
universal  suffrage.      The  assembly   consisted  "of  sixty- 
three  Conservatives  and  Moderates,   ten  Liberals,  fifty 
Socialists,  and  seven  Poles.     Its  election  marked  a  sharp 

'Article  102. 
'Article  103. 

3Gennany,  in  her  observations  dated  May  29,  1913,  objected  to  "the  cession 
of  the  purely  German  Hanseatic  town  of  Danzig  and  of  its  surroundings,  which 
are  likewise  purely  German,  as  demanded  in  Articles  100  to  108"  of  the  Treaty. 
"Even  the  Poles  do  not  seriously  deny  that  Danzig  has  always  been  German  in 
character.  The  attempt  to  make  Danzig  a  free  city  and  to  surrender  its  means 
of  communication  and  the  representation  of  its  rights  abroad  to  the  Polish  State 
would  lead  to  violent  opposition  and  to  a  continuous  state  of  war  in  the  East. 
And  withal,  economic  measures  have  been  taken  to  make  ad  communication 
between  Danzig  and  Germany  extremely  difficult — evidently  with  the  purpose 
of  making  this  purely  German  territory  Polish  in  the  course  of  time  by  means  of 
economic  pressure." 

The  Allies  replied  that  "the  proposed  settlement  for  Danzig  .  .  .  will 
preserve  the  character  which  Danzig  held  during  many  centuries  and,  indeed, 
until  forcibly  and  contrary  to  the  will  of  the  inhabitants  it  was  annexed  to  the 
Prussian  State."  Temperley.  Ed.,  A  History  of  the  Peace  Conference  at  Paris, 
Vol.  n,  pp.  291-202  (London,  1920). 


CITY  OF  DANZIG  429 

swing  from  Socialism  to  German  nationalism,  two-thirds 

of  the  Poles  keeping  away  entirely,  and  its  temper  was  on 

the  whole  conservative.    Yet  the  document  finally  adopted 

by  a  vote  of  sixty-eight  Conservatives  and  Liberals  to 

forty-four  Socialists  and  Poles  would  undoubtedly  in  this 

country  be  held  dangerously  radical."1     The  constitution     Constitution 

was  adopted  on  August  11,  1920,  and  the  Executive  Coun-     of  192° 

cil  of  the  League  of  Nations,  at  a  meeting  on  November 

17,  1920,  gave  the  document  its  approval.    The  most  se- 

rious objection  of  the  Council  was  to  the  use  (unauthorized 

by  the  Peace  Treaty)  of  the  word  "Hanseatic"  in  the  legal 

title  of  the  city.2     In  many  of  its  articles  the  Danzig 

constitution  makes  a  verbatim  copy  of  articles  of  the 

German  constitution.3      Naturally,   however,   there   are 

many  differences  in  the  forms  of  government  of  the  two 

states. 

2.  CONSTITUTION  OF  THE  FREE  AND  HANSEATIC 
CITY  OF  DANZIG4 

PART  I 

ORGANIZATION  OF  THE  STATE 
I.  General 

Article  1.  The  City  of  Danzig  and  the  territory  attached 
thereto  shall  form  a  Free  State  under  the  name  of  the  "Free 
and  Hanseatic  City  of  Danzig." 


Bjorkman,  "The  Constitution  of  a  City  State,"  The  Freeman,  Decem- 
ber 15,  1920. 

sThe  text  of  the  constitution  used  is  that  of  the  official  translation  prepared 
for  the  Executive  Council  of  the  League  of  Nations,  Document  du  Conseti,  81  A. 
The  affairs  of  Danzig  have  been  frequently  before  the  League  of  Nations.  For 
the  details  up  to  January,  1922,  see  Societe  des  Nations:  Journal  Official,  IIP 
Annee,  No.  3,  p.  241,  and  references  (March,  1922). 

3The  English  versions  of  such  articles  here  given  are  not  always  identical,  for 
the  reason  that  it  has  seemed  best  not  to  attempt  to  modify  the  official  (League 
of  Nations)  translation  of  the  Danzig  constitution,  so  as  to  make  it  conform  to 
the  unofficial  translation  of  the  German  constitution,  nor  vice  versa. 

4Sce  below  for  the  resolution  of  the  Council  of  the  League  of  Nations  with 
reference  to  the  use  of  the  word  "Hanseatic." 


430       NEW  CONSTITUTIONS  OF  EUROPE 

Art.  2.  The  arms  of  the  state  shall  be :  On  a  red  shield,  two 
silver  crosses  one  above  the  other,  above  which  is  placed  a 
golden  crown. 

The  state  flag  and  the  mercantile  flag  shall  be  on  a  red  ground : 
in  the  first  third,  counting  from  the  mast,  and  parallel  thereto, 
two  white  crosses,  one  above  the  other,  and  surmounted  by  a 
yellow  crown. 

Art.  3.    The  sovereign  power  in  the  state  resides  hi  the  people. 

Art.  4.    The  official  language  shall  be  German. 

Art.  5.  The  Polish  speaking  portion  of  the  population  shall 
have  its  free  racial  development  both  by  law  and  the  adminis- 
tration, in  particular  as  regards  the  use  of  its  mother  tongue 
in  the  schools  and  in  the  internal  Administration,  as  well  as 
in  the  administration  of  justice.  Details  will  be  determined 
by  law. 

II.  Popular  Assembly 

Art.  6.  The  Popular  Assembly  shall  consist  of  one  hundred 
and  twenty  members. 

Art.  7.  The  members  of  the  Popular  Assembly  shall  be  rep- 
resentatives of  the  whole  people.  They  shall  be  responsible 
to  their  own  conscience  only,  and  shall  not  be  bound  by  any 
mandate. 

Art.  8.  The  members  shall  be  elected  by  the  universal, 
equal,  direct,  and  secret  vote  of  all  citizens,  both  men  and 
women,  who  have  attained  the  age  of  20  years,  in  accordance 
with  the  principles  of  proportional  representation. 

Any  person  entitled  to  vote,  who  shall  have  completed  his 
twenty -fifth  year,  shall  be  eligible  as  a  member. 

The  following  shall  be  excluded  from  the  exercise  of  the 
franchise : 

(1)  Persons  placed  under  guardianship,  whether  permanently 
or  provisionally,  or  persons  placed  under  educational  super- 
vision. 

(2)  Persons  deprived  by  a  decision  valid  in  law  of  their  rights 
as  citizen. 

Art.  9.  The  Popular  Assembly  shall  be  elected  for  four 
years.  Elections  shall  take  place  on  a  Sunday  in  November. 
The  newly  elected  Assembly  shall  enter  on  its  duties  from 
January  1st  of  the  year  following  that  of  the  election.  Details 
will  be  settled  by  the  election  act. 


CITY  OF  DANZIG  431 

Art.  10.  All  petitions  against  the  validity  of  the  election  of 
members  shall  be  decided  by  the  Supreme  Court  of  the  Free 
and  Hanseatic  City  of  Danzig.  The  cases  shall  be  dealt  with 
in  public  sessions. 

Any  persons  entitled  to  vote  shall  have  the  right  to  present 
a  petition.  The  petition  shall  be  presented  to  the  Supreme 
Court  of  the  Free  and  Hanseatic  City,  corroborated  by  evidence 
within  four  weeks  of  the  official  return  of  the  result  of  the 
election. 

The  documents  relating  to  the  election  of  members  shall, 
when  completed,  be  laid  before  the  Popular  Assembly. 

If  any  doubt  shall  arise  as  to  whether  the  legal  requirements 
for  membership  have  been  fulfilled  the  Supreme  Court  of  the 
Free  and  Hanseatic  City  of  Danzig  shall  at  the  request  of  the 
Popular  Assembly,  give  the  final  decision. 

Art.  11.  The  Popular  Assembly  shall  choose  its  own  Presi- 
dent, Vice-President,  and  clerks;  it  shall  decide  its  own  rules 
of  procedure. 

Art.  12.  The  Popular  Assembly  shall  meet  when  summoned 
by  its  President.  It  must  be  summoned  at  the  demand  of  the 
Senate,  or  on  a  written  application  stating  the  purpose  of 
the  summons,  made  by  at  least  one-sixth  of  the  members  of  the 
Assembly. 

It  shall  meet  for  the  first  time  on  the  summons  of  the  Senate, 
and  not  later  than  January  the  15th. 

Art.  13.  The  President  shall  exercise  authority  and  disci- 
plinary power  within  the  Assembly  building.  The  internal  ad- 
ministration shall  be  placed  under  his  orders;  he  shall  admin- 
ister the  receipts  and  expenditure  of  the  Assembly  in  accordance 
with  the  provisions  made  by  the  budget,  and  shall  represent  the 
Free  and  Hanseatic  City  of  Danzig  in  all  transactions  of  a 
legal  nature,  and  in  lawsuits  which  may  arise  in  connection  with 
his  administration. 

Art.  14.  The  business  of  the  Popular  Assembly  shall  be 
conducted  in  public.  The  public  may  be  excluded  on  the  pro- 
posal of  the  Senate,  or  on  that  of  at  least  one-sixth  of  the  mem- 
bers of  the  Assembly  adopted  by  a  two-thirds  majority. 

Art.  15.  The  publishing  of  accurate  reports  of  proceedings 
at  a  public  session  shall  be  free  from  all  penalty. 

Art.  16.  The  Assembly  shall  not  vote  unless  at  least  one- 
half  of  the  elected  members  are  present. 

Art.  17.     Decisions  of  the  Popular  Assembly  shall  be  by  a 


432       NEW  CONSTITUTIONS  OF  EUROPE 

majority  of  votes,  except  so  far  as  the  constitution  provides 
otherwise. 

Art.  18.  The  Senate  shall  be  invited  to  be  present  at  every 
meeting  of  the  Popular  Assembly. 

Members  and  persons  authorised  by  the  Senate,  shall  be  given 
a  hearing  at  any  time  during  the  meetings.  They  shall  be 
subject  to  the  authority  of  the  President. 

The  Popular  Assembly  and  its  committees  may  demand  the 
presence  of  any  member  of  the  Senate. 

Art.  19.  The  Popular  Assembly  shall  be  authorized  to  de- 
mand information  from  the  Senate  on  all  affairs  cf  the  state, 
to  satisfy  itself  regarding  the  execution  of  its  decisions  and  the 
administration  of  the  state  revenues.  The  subjects  regarding 
which  information  is  asked  for  shall  be  previously  communi- 
cated to  the  Senate  in  writing. 

When  the  legality  or  propriety  of  any  governmental  or  ad- 
ministrative measures  are  called  in  question,  the  Popular  Assem- 
bly shall  have  the  right,  and  on  the  proposal  of  one-fifth  of  its 
members  shall  be  bound,  to  appoint  a  committee  of  enquiry. 
Committees  of  enquiry  shall  not  interfere  in  legal  or  disciplinary 
proceedings  which  are  still  pending.  These  committees  shall 
demand  such  proofs  in  public  sessions  as  they,  or  the  proposer  of 
the  motion,  shall  consider  necessary. 

The  public  may  be  excluded  from  the  meetings  of  a  committee 
of  enquiry,  if  a  two-thirds  majority  so  determine.  The  standing 
orders  shall  determine  the  procedure  of  the  committee  and  shall 
fix  the  number  of  its  members.  The  judicial  and  administrative 
authorities  shall  be  bound  to  comply  with  demands  of  these 
committees  for  information.  Documents  in  possession  of  these 
authorities  shall  be  laid  before  such  committees,  if  they  so  desire. 
The  law  of  evidence  as  laid  down  in  the  regulations  for  criminal 
procedure  shall,  so  far  as  its  nature  permits,  be  applied  by 
these  committees  and  by  the  authorities  instructed  by  them,  but 
the  secrecy  of  communications  by  letter,  telegram,  and  telephone 
shall  not  be  effected. 

Art.  20.  No  one  shall  be  prosecuted  or  be  subject  to  any 
disciplinary  measures,  or  be  called  to  account  in  other  ways  out- 
side the  Assembly  for  his  vote,  or  for  any  statement  made  by  him 
as  a  member  in  the  execution  of  his  office. 

Art.  21.  No  member  shall  be  prosecuted  or  arrested,  with- 
out the  approval  of  the  Assembly,  for  any  offense,  unless  he  be 
arrested  while  committing  such  act,  or  at  the  latest  during  the 


CITY  OF  DANZIG  433 

course  of  the  following  day.  A  similar  approval  shall  be  neces- 
sary for  any  other  encroachment  upon  his  personal  liberty  by 
which  the  execution  of  his  duties  as  a  member  may  be  affected. 

Any  criminal  or  disciplinary  proceedings  against  a  member, 
and  any  arrest  or  other  limitation  of  personal  liberty  shall, 
at  the  request  of  the  Popular  Assembly,  be  suspended  for  the 
period  of  his  membership. 

Art.  22.  Members  shall  have  the  right  to  refuse  to  give 
evidence  in  regard  to  persons  who  have  communicated  informa- 
tion to  them  in  their  capacity  as  members,  or  to  whom  they 
have  made  such  communications  in  the  exercise  of  their  office 
as  members,  and  also  with  regard  to  the  facts  themselves  which 
formed  the  subject  of  such  communications.  Further,  regard- 
ing the  seizure  of  documents,  members  shall  have  the  status  of 
persons  possessing  a  legal  right  to  refuse  evidence. 

Judicial  searches  or  seizures  can  be  undertaken  in  the  build- 
ing of  the  Popular  Assembly  only  with  the  approval  of  the 
President  of  the  Assembly. 

Art.  23.  Members  shall  receive  compensation  in  accordance 
with  the  provisions  of  a  special  law. 

Art.  24.  Officials,  employees,  and  workmen,  shall  require 
no  special  leave  for  the  purpose  of  fulfilling  their  duties  as  mem- 
bers of  the  Popular  Assembly,  the  district  and  municipal  coun- 
cils, or  any  public  offices  and  bodies. 

If  any  such  person  be  nominated  as  a  candidate  for  election, 
he  shall  be  granted  the  necessary  leave  from  the  time  at  which 
the  writs  for  the  election  are  issued,  for  the  purpose  of  prepar- 
ing for  the  election. 

HI.  The  Senate 

Art.  25.  The  Senate  shall  consist  of  the  President  as  chair- 
man, the  Vice-President  as  vice-chairman,  and  20  Senators. 

The  President  and  seven  Senators,  acting  as  the  Main  Stand- 
ing Committee,  shall  be  elected  by  the  Popular  Assembly  for 
twelve  years.  The  Vice-President  and  13  Senators,  acting  in  a 
secondary  capacity  (Nebenamt),  shall  be  elected  by  the  Popular 
Assembly  for  an  indefinite  period. 

The  vote  shall  be  secret  and  shall  be  by  ballot.  The  major- 
ity of  votes  recorded  shall  determine  the  election.  If  an  abso- 
lute majority  be  not  secured  at  the  first  ballot,  the  two  persons 
who  have  secured  the  most  votes  shall  be  voted  for  a  second 
time.  If  both  candidates  at  the  second  ballot  receive  an  equal 


434       NEW  CONSTITUTIONS  OF  EUROPE 

number  of  votes,  the  decision  shall  be  taken  by  lot,  to  be  drawn 
by  the  President  of  the  Popular  Assembly. 

Art.  26.  Any  person  shall  be  eligible  for  membership  of  the 
Senate  who  shall  have  completed  his  twenty-fifth  year.  A 
member  may  be  re-elected. 

The  following  are  ineligible: 

(1)  Persons  placed  under  guardianship,  whether  permanently 
or  provisionally,  or  persons  whose  legal  rights  have  been  re- 
stricted [or  who  have  been  placed  under  provisional  guardian- 
ship]. 

(2)  Persons  deprived  by  a  decision  valid  in  law  of  their  rights 
as  citizens. 

(3)  Undischarged  bankrupts. 

Art.  27.  No  person  shall  be  obliged  to  accept  election  as  a 
member  of  the  Senate.  A  member  may  resign  at  any  time. 

Art.  28.  At  the  next  meeting  of  the  Popular  Assembly  after 
the  election,  the  newly  elected  member  shall  be  installed  in  his 
office  in  the  presence  of  the  Senate  by  the  President  of  the  Sen- 
ate, or  his  deputy. 

The  new  member  shall  take  the  following  oath: 

"I  will  faithfully  carry  out  my  duty  as  a  member  of  the 
Senate  and  will  conscientiously  perform  the  work  of 
my  office.     I  will  observe  the  constitution  and  the  laws, 
I  will  keep  silence  in  all  matters  in  which  I  am  ordered 
so  to  do,  and  will  use  my  best  endeavors  to  promote 
the  welfare  of  the  Free  and  Hanseatic  City  of  Danzig." 
The  addition  of  a  religious  oath  shall  be  admitted. 
Art.  29.    The  members  acting  in  a  secondary  capacity  are 
responsible  to  the  Popular  Assembly  in  the  performance  of  their 
duties,  and  shall  be  answerable  to  the  Assembly  for  all  their 
official  acts.     Such  members  from  whom  the  Popular  Assembly 
shall  have  withdrawn  its  confidence  by  a  deliberate  resolution 
to  that  effect  shall  resign  from  the  Senate. 

Art.  30.  A  member  shall  cease  to  hold  office  in  the  Senate 
when  any  of  the  cases  mentioned  in  Article  26,  which  render  him 
ineligible  for  election,  shall  arise. 

Art.  31.  If  the  whole  Senate  resign,  it  shall  continue  to 
discharge  its  duties  until  the  election  of  the  new  Senate. 

Art.  32.  A  member  of  the  Senate  may,  on  a  resolution  of 
the  Popular  Assembly,  be  prosecuted  for  any  infringement  of  the 
constitution,  or  of  a  law.  The  motion  of  the  institution  of  such 
proceedings  shall  be  signed  by  at  least  one-quarter  of  the  mem- 


CITY  OF  DANZIG  435 

bers  of  the  Popular  Assembly.  Judgment  shall  be  given  by  the 
Supreme  Court  of  the  Free  and  Hanseatic  City.  Details  shall 
be  determined  by  special  legislation. 

Art.  33.  The  members  of  the  Main  Standing  Committee  of 
the  Senate  shall  receive  the  salary  determined  by  law.  Special 
legislation  shall  provide  for  pensions  and  allowances  to  their 
widows  and  dependents. 

The  members  of  the  Senate  acting  hi  a  secondary  capacity 
shall  receive  a  subsistence  allowance  determined  by  special 
legislation. 

Art.  34.  The  members  of  the  Main  Standing  Committee  of 
the  Senate  shall  hold  no  other  public  office,  nor  shall  they,  with- 
out the  approval  of  the  Senate,  follow  any  other  profession;  the 
other  members  shall  hold  public  office  only  with  the  approval  of 
the  Senate. 

Membership  of  a  board  of  managers  or  of  directors  of  a  com- 
mercial company  shall  require  the  approval  of  the  Senate. 

Art.  35.  The  Senate  shall  determine  the  conduct  of  its  busi- 
ness and  the  distribution  of  duties  amongst  its  members. 

Art.  36.  The  President  of  the  Senate  shall  direct  and  shall 
exercise  general  supervision  over  the  work  of  the  Administration. 

In  all  cases  where  requirement  of  previous  decision  by  the 
Senate  would  involve  a  detrimental  loss  of  time,  the  President 
shall  himself,  for  the  time  being,  carry  out  the  duties  which  de- 
volve on  the  Senate,  in  consultation  with  the  Vice-President, 
or,  in  his  absence,  with  the  senior  Senator;  he  shall  neverthe- 
less inform  the  Senate  at  the  next  meeting,  in  order  that  it 
may  approve  his  action,  or  take  some  other  decision. 

Art.  37.  The  meetings  of  the  Senate  shall  not  be  open  to 
the  public.  At  least  one-half  of  its  members  shall  form  a 
quorum.  Decisions  shall  be  by  majority  vote. 

In  case  of  a  tie  the  chairman  shall  have  a  casting  vote. 

A  member  shall  not  take  part  in  the  discussion  or  voting  upon 
any  subject  which  concerns  his  own  affairs,  or  those  of  persons 
belonging  to  his  family;  he  shall  withdraw  from  the  chamber 
during  such  discussion. 

Art.  38.  The  Senate  shall  direct  the  policy  of  the  govern- 
ment and  be  responsible  for  it  to  the  Popular  Assembly. 

Art.  39.  The  Senate  is  the  highest  authority  in  the  land. 
Its  particular  duties  are  as  follows: 

(1)  It  shall  publish  all  laws  within  a  month  of  their  adoption, 
and  shall  issue  all  regulations  necessary  to  ensure  their  execution. 


436       NEW  CONSTITUTIONS  OF  EUROPE 

(2)  It  shall  of  its  own  authority  conduct  the  administration  of 
the  state  in  accordance  with  the  provisions  of  the  constitution, 
of  the  laws,  and  of  the  budget,  and  shall  exercise  control  over  all 
the  state  authorities. 

(3)  It  shall  draft  the  budget. 

(4)  It  shall  administer  the  property  and  revenues  of  the 
state.     It  shall  give  directions  regarding  ways  and  means  and 
expenditure,  and  it  shall  represent  the  rights  of  the  state. 

(5)  It  shall  nominate  public  servants,  so  far  as  is  not  other- 
wise provided  by  the  constitution  or  by  law. 

(6)  It  shall  provide  for  the  safety  and  common  welfare  of 
the  state  and  all  persons  belonging  thereto,  within  the  limits  of 
the  constitution  and  the  laws,  and  shall  issue  all  regulations 
necessary  thereto. 

Art.  40.  The  Senate  shall  have  the  right  of  remission  of 
punishment  and  of  pardon. 

Art.  41.  The  Senate  shall  represent  the  Free  and  Hanseatic 
City  of  Danzig  in  its  external  relations. 

Official  documents  shall  be  signed  in  the  name  of  the  Free 
and  Hanseatic  City  of  Danzig  by  the  President  or  Vice-President 
and  by  one  other  member  of  the  Senate. 

IV.  Legislation 

Art.  42.  Concurrent  decisions  of  the  Popular  Assembly  and 
of  the  Senate  are  required  for  the  passing  of  a  bill  into  law.  If 
the  Senate  does  not  concur  within  two  weeks  in  a  decision  taken 
by  the  Popular  Assembly  regarding  a  bill,  the  bill  shall  be  sent 
back  to  the  Popular  Assembly. 

If  the  Popular  Assembly  adheres  to  its  decision,  the  Senate 
shall  accept  the  decision  within  one  month,  or  appeal  to  the  de- 
cision of  the  people  (Volksentscheid). 

Art.  43.  Laws  shall  come  into  force  on  the  eighth  day  after 
the  day  on  which  they  are  published  in  the  official  Gazette  for 
the  Free  and  Hanseatic  City  of  Danzig,  unless  it  shall  be  other- 
wise provided  by  statute. 

Art.  44.     Legislation  shall  likewise  be  required  for: — 

(1)  The  annual  budget. 

(2)  The  issue  of  loans. 

(3)  The  introduction  of  monopolies  and  the  concession  of 
privileges. 

(4)  The  alteration  of  boundaries  of  the  municipalities. 


CITY  OF  DANZIG  437 

(5)  A  general  amnesty. 

(6)  The  conclusion  of  treaties  with  other  states. 

Art.  45.  Bills  shall  be  introduced  by  the  Senate,  or  by  legally 
constituted  bodies  representing  the  various  professions  and 
trades. 

Bills  dealing  with  economic  or  social  questions  shall  be  sub- 
mitted to  these  bodies  for  their  approval. 

Art.  46.  A  popular  vote  shall  be  taken  on  the  demand  of  one- 
tenth  of  the  electorate  accompanied  by  the  full  text  of  the  bill. 
The  bill  shall  be  laid  before  the  Popular  Assembly  by  the  Senate, 
with  a  statement  of  its  views  on  the  bill.  The  popular  vote 
shall  not  be  taken  if  the  bill  is  accepted  without  amendment  by 
the  Popular  Assembly. 

Art.  47.  A  popular  vote  shall  not  be  taken  on  the  budget, 
or  on  legislation  imposing  taxation,  or  on  decrees  regulating 
salaries  except  at  the  request  of  the  Senate. 

All  citizens  qualified  to  vote  for  the  Popular  Assembly  may 
take  part  in  a  popular  vote.  The  decision  shall  be  by  a  majority 
of  the  votes  recorded.  A  decision  of  the  Popular  Assembly  can 
be  reversed  by  a  popular  vote  only  if  the  majority  of  the  electo- 
rate take  part  in  the  voting. 

The  procedure  with  regard  to  the  popular  vote  shall  be  deter- 
mined by  law. 

Art.  48.  An  amendment  to  the  constitution  emanating  from 
the  Popular  Assembly  shall  require  for  adoption  a  two-thirds 
majority  and  a  quorum  of  at  least  two-thirds  of  the  elected 
representatives  at  two  readings.  These  readings  shall  be  held 
at  an  interval  of  at  least  one  a  month. 

The  agreement  of  the  majority  of  the  electorate  shall  be  re- 
quired for  the  adoption  of  an  amendment  to  the  constitution 
by  referendum. 

V.  Administration 

Art.  49.  An  annual  statement  of  all  proposed  receipts  and 
expenditures  of  the  state  shall  be  drawn  up  in  advance,  and 
embodied  in  the  budget. 

The  financial  year  shall  date  from  the  1st  of  April  to  the 
31st  of  March. 

Art.  50.  If,  before  the  end  of  the  financial  year,  the  budget 
for  the  following  year  shall  not  have  passed  into  law,  the  Senate 
shall  be  bound  to  submit  a  provisional  budget.  It  shall  only 


be  entitled  to  impose  taxes  previously  in  existence  and  other 
duties  for  six  months  from  the  close  of  the  financial  year,  and 
shall  authorise  only  such  expenditure  as  may  be  required  for 
the  maintenance  of  lawfully  established  institutions,  or  for  the 
transaction  of  matters  legally  provided  for;  it  shall  be  further 
authorized  to  meet  all  legal  obligations  of  the  state,  to  carry 
on  public  works,  and  other  undertakings,  which  have  already 
been  sanctioned  by  the  budget  of  the  previous  year. 

Art.  51.  Money  shall  be  obtained  by  credit  only  in  cases 
of  exceptional  need,  and  in  general  only  for  expenditure  for  pro- 
ductive purposes. 

Art.  52.  Decisions  of  the  Popular  Assembly  which  involve 
expenditure  additional  to  the  budget  shall  include  provisions 
for  the  meeting  of  this  expenditure. 

Art.  53.  If  the  amount  of  the  budget  is  to  be  exceeded,  or  if 
any  expenditure  not  provided  for  in  the  budget  is  to  be  under- 
taken, further  approval  by  the  Popular  Assembly  shall  be  nec- 
essary. This  shall  be  given  only  in  cases  of  unforeseen  and 
unavoidable  necessity. 

Art.  54.  Budget  accounts  shall  be  audited  and  approved 
by  an  independent  auditor. 

The  general  budget  accounts  for  each  year,  including  a  review 
of  state  indebtedness,  accompanied  by  a  statement  from  the 
Auditor,  shall  be  laid  before  the  Popular  Assembly  for  approval 
of  the  action  of  the  Senate. 

Art.  55.  The  approval  of  the  Financial  Council  shall  be 
required : 

(1)  For  fresh  taxation. 

(2)  For  the  issue  of  loans  and  the  acceptance  of  securities. 

(3)  For  expenditure  not  already  covered,  or  which  is  to  be 
covered  by  a  loan. 

If  the  Financial  Council  does  not  give  its  approval,  it  shall 
communicate  the  fact  to  the  Senate  within  two  weeks,  and  shall 
state  its  reasons  in  writing  within  a  further  period  of  two  weeks. 
The  Popular  Assembly  shall  then  take  a  fresh  decision. 

The  constitution  and  procedure  of  the  Financial  Council  shall 
be  determined  by  special  legislation. 

Art.  56.  The  railway,  postal,  telegraph,  and  telephone  ser- 
vices of  the  Free  and  Hanseatic  City  shall  be  matters  of  state 
concern,  without  prejudice  to  the  agreement  arrived  at  in  ac- 
cordance with  Article  104  of  the  Peace  Treaty  of  the  28th  June, 
1919. 


CITY  OF  DANZIG  439 

Art.  57.  Offices  shall  be  established  for  the  permanent  ad- 
ministration or  supervision  of  different  branches  of  the  public 
services.  Citizens  entitled  to  vote  may  be  attached  to  these  in 
an  honorary  capacity  as  members.  The  offices  shall  be  in  all  re- 
spects subject  to  the  control  of  the  Senate.  Details  will  be  de- 
termined by  law. 

Art.  58.  Committees  may  be  established  for  the  discharge 
of  duties  of  a  temporary  nature. 

Art.  59.  The  representatives  of  the  Free  and  Hanseatic  City 
of  Danzig  to  be  appointed  on  international  committees  estab- 
lished by  international  convention,  for  the  administration  of  un- 
dertakings or  institutions,  or  for  the  fulfilment  of  permanent  or 
temporary  obligations,  shall  be  elected  by  the  Popular  Assem- 
bly. The  Popular  Assembly  may  delegate  the  appointment  of 
such  representatives  to  one  of  its  committees  or  to  the  Senate. 

VI.  Administration  of  Justice 

Art.  60.  Judges  shall  be  independent  and  subject  only  to 
the  law. 

Art.  61.  The  establishment  of  extraordinary  tribunals  shall 
not  be  permitted.  No  man  shall  be  withdrawn  from  the  juris- 
diction of  his  lawful  judge. 

Art.  62.  The  constitution  and  the  competence  of  the  courts 
shall  be  prescribed  by  law. 

Art.  63.  The  judges  of  the  regular  judicial  administration 
shall  be  elected  for  life  by  a  special  committee  consisting  of 
the  President  and  one  member  of  the  Senate,  the  three  Presi- 
dents of  the  Popular  Assembly,  the  President  of  the  High  Court 
of  Justice,  three  judges  elected  by  the  whole  body  of  judges,  and 
two  advocates  elected  by  the  whole  body  of  advocates  of  the 
Free  and  Hanseatic  City  of  Danzig. 

Further  provisions,  especially  as  regards  the  provision  of 
substitutes  for  members  of  the  committee  who  are  prevented 
from  attending,  and  as  regards  the  procedure  of  election  and 
the  methods  of  voting,  will  be  provided  for  by  legislation. 

Art.  64.  Judges  shall  be  removed  from  their  office  or  trans- 
ferred to  another  post  or  placed  in  retirement  against  their  will, 
whether  permanently  or  temporarily,  only  as  a  result  of  a  de- 
cision of  a  court  of  law,  and  only  for  the  reasons  and  in  the  man- 
ner laid  down  by  law.  The  law  may  fix  the  age  of  retirement 
for  judges. 


440       NEW  CONSTITUTIONS  OF  EUROPE 

Provisional  removal  from  office  as  provided  for  by  law  shall 
not  be  affected  by  the  above. 

If  any  changes  be  made  in  the  organization  of  the  courts  or 
the  districts  administered  by  them,  judges  may  be  compulsorily 
transferred  to  another  court  or  removed  from  their  office  by  the 
commissions  described  in  Article  63,  but  they  shall  continue  to 
receive  the  whole  of  their  emoluments. 

These  provisions  shall  not  apply  to  judges  of  the  commercial 
court,  aldermen,  and  jurymen. 

Art.  65.  Conditions  as  to  the  eligibility  of  judges  for  elec- 
tion and  as  to  their  official  status  shall  be  determined  by  special 
legislation,  which  may  be  amended  only  in  the  manner  specified 
by  Article  48. 

VII.  Communal  Organization 

Art.  66.  The  territory  of  the  state  shall  be  divided  into 
town  districts  and  rural  districts. 

Art.  67.  Rural  districts,  towns,  and  municipalities  shall  have 
powers  of  self-government  under  the  supervision  of  the  Senate, 
in  accordance  with  the  provisions  of  special  legislation.  Matters 
of  state  administration  may  also  be  entrusted  to  them. 

Art.  68.  The  City  of  Danzig  is  a  separate  municipality  of 
the  state,  with  its  own  property. 

The  local  affairs  of  the  City  of  Danzig  shall  rank  as  affairs 
of  the  state,  and  shall  be  directed  by  the  Senate  and  Popular 
Assembly. 

For  the  management  of  the  local  affairs  of  the  City  of  Danzig 
a  city  council  shall  be  elected  by  the  Popular  Assembly  from  its 
members  and  from  other  citizens  of  the  city.  Its  composition 
and  competence  shall  be  determined  by  special  legislation. 

Art.  69.  The  principles  governing  elections  to  the  Popular 
Assembly  shall  apply  also  to  town,  district,  and  municipal  elec- 
tions, but  six  months'  residence  shall  be  necessary  to  secure  the 
right  to  vote. 

PART  II 

FUNDAMENTAL  RIGHTS  AND  DUTIES 

Art.  70.  Fundamental  rights  and  duties  shall  form  the  basis 
for  the  direction  and  the  limits  of  legislation,  administration  of 
justice,  and  government. 


CITY  OF  DANZIG  441 

I.  Individuals 

Art.  71.  Citizenship  of  the  state  shall  be  acquired  and 
forfeited  in  accordance  with  the  provisions  laid  down  by 
law. 

Art.  72.  All  citizens  of  the  Free  and  Hanseatic  City  shall 
be  equal  before  the  law.  No  legislation  which  provides  for 
exceptions  shall  be  admissible. 

Persons  of  both  sexes  shall  have  the  same  civil  rights  and 
duties. 

There  shall  be  no  legal  privileges  or  disqualifications  due 
to  birth,  position,  or  creed. 

Titles — with  the  exception  of  academic  degrees — shall  not  be 
awarded  except  when  they  denote  an  office  or  a  profession. 

Orders  and  decorations  may  not  be  awarded  by  the  Free  and 
Hanseatic  City. 

No  citizen  of  Danzig  may  accept  titles  or  decorations. 

Titles  of  nobility  shall  be  regarded  only  as  a  part  of  a  name, 
and  shall  no  longer  be  awarded. 

Art.  73.     Personal  liberty  shall  be  inviolable. 

A  limitation  or  deprivation  of  personal  liberty  by  the  public 
authorities  shall  be  admitted  only  in  accordance  with  the  law. 

Persons  deprived  of  their  liberty  shall  be  informed  on  the 
following  day,  at  the  latest,  of  the  authority  ordering  such  dep- 
rivation of  liberty  and  of  the  grounds  for  the  same;  opportun- 
ity shall  immediately  be  given  them  to  bring  forward  objections 
against  the  deprivation  of  their  liberty. 

Art.  74.  All  citizens  shall  enjoy  freedom  of  movement  in 
the  Free  and  Hanseatic  City  and  shall  have  the  right  to  establish 
themselves,  and  to  settle  at  any  place  they  may  choose,  to  ac- 
quire real  property,  and  to  pursue  any  calling.  Limitations  of 
this  right  shall  require  the  sanction  of  the  legislature. 

Art.  75.  Every  citizen  shall  be  entitled  to  emigrate  to  other 
countries.  Emigration  can  be  restricted  only  by  legislation. 

Every  citizen,  both  within  and  without  the  territory  of  the 
state,  shall  have  the  right  to  claim  its  protection  in  relation  to 
foreign  countries. 

No  citizen  shall  be  delivered  up  to  a  foreign  government  for 
prosecution  or  punishment. 

Art.  76.  Establishments  set  up  by  the  state  at  the  public 
expense  in  the  interests  of  interior  colonization  shall  not  be  used 
to  the  prejudice  of  any  particular  nation. 


442       NEW  CONSTITUTIONS  OF  EUROPE 

Art.  77.  The  secrecy  of  correspondence  by  letter,  and  the 
secrecy  of  the  post,  telephone,  and  telegraph  services  shall  be 
inviolable.  Exceptions  can  be  sanctioned  only  by  law. 

Art.  78.  Every  man  shall  have  the  right  within  the  limits 
of  the  law  to  express  his  own  opinion  in  word,  writing,  or  any 
other  manner.  This  right  shall  not  be  restricted  by  any  con- 
ditions of  employment  or  appointment,  and  no  man  shall  be 
in  any  way  prejudiced  by  the  exercise  of  this  right. 

Censorship  shall  not  be  permitted. 

Different  provisions  may  be  established  by  law  regarding 
cinematographs. 

Legal  measures  shall  be  adopted  to  combat  obscene  and  trashy 
literature,  and  to  protect  young  persons  at  public  performances 
and  exhibitions. 

Art.  79.  Marriage  as  the  foundation  of  family  life  shall 
be  placed  under  the  special  protection  of  the  state.  It  shall  be 
based  on  the  principle  of  equal  rights  for  both  sexes. 

Large  families  shall  have  a  claim  to  compensatory  support. 

Motherhood  shall  have  a  claim  to  the  protection  and  support 
of  the  state. 

Art.  80.  The  education  of  children  to  physical,  intellectual, 
and  social  efficiency  is  the  highest  duty  and  natural  right  of 
parents. 

The  state  shall  supervise  the  execution  of  these  duties. 

Art.  81.  The  legislation  shall  extend  similar  conditions  of 
physical,  intellectual,  and  social  development  to  illegitimate 
children  as  for  children  born  in  wedlock. 

Art.  82.  Young  persons  shall  be  protected  against  exploi- 
tation and  also  against  moral,  intellectual,  or  bodily  neglect. 
Provisions  for  reformatory  education  can  be  made  only  by  law. 

Art.  83.  All  citizens  shall  have  the  right  to  meet  together 
in  a  peaceful  manner  and  unarmed,  without  giving  notice  and 
without  special  permission.  Notice  shall  be  given  of  open-air 
meetings,  and  permission  may  be  withheld  in  the  case  of  direct 
danger  to  public  safety.  Special  provisions  may  be  made  for 
the  protection  of  the  Popular  Assembly.  Notification  of  reli- 
gious processions  shall  not  be  necessary. 

Art.  84.  All  citizens  shall  have  the  right  to  form  unions 
or  associations  for  purposes  not  in  defiance  of  the  criminal  laws. 
This  shall  also  apply  to  religious  unions  and  associations.  Every 
union  shall  be  entitled  to  acquire  legal  status  in  accordance  with 
the  provisions  of  the  civil  law.  This  recognition  shall  not  be 


CITY  OF  DANZIG  443 

withheld  on  the  ground  that  the  union  has  a  political,  social,  or 
religious  object. 

Art.  85.  The  house  of  every  citizen  shall  be  for  him  an  in- 
violable sanctuary.  Exceptions  shall  only  be  permitted  in  ac- 
cordance with  the  law. 

Art.  86.  It  is  the  duty  of  every  citizen  to  protect  the  con- 
stitution against  unlawful  attacks. 

Art.  87.  All  citizens  without  distinction  shall  take  their 
share  in  proportion  to  their  means  in  all  public  burdens,  in  ac- 
cordance with  the  provisions  of  the  law. 

Art.  88.  All  citizens  shall  be  bound  in  accordance  with  the 
provisions  of  the  law  to  give  personal  service  to  the  state  and 
the  municipality. 

Art.  89.  All  citizens  shall  be  bound  in  accordance  with  the 
law  to  undertake  official  duties  of  an  honorary  nature. 

II.  Public  Servants 

Art.  90.  All  citizens  of  either  sex  shall  be  eligible  for  public 
appointments,  in  accordance  with  their  qualifications  and  pre- 
vious work. 

Immediately  after  the  coming  into  force  of  the  constitution 
of  the  Free  and  Hanseatic  City,  special  legislation  shall  be 
adopted  with  regard  to  the  rights  and  payments  of  officials. 
The  existing  officials'  organizations  shall  take  part  in  the  draft- 
ing of  these  laws. 

Art.  91.  Officials  shall  be  appointed  for  life,  except  so  far 
as  is  otherwise  provided  by  the  constitution  or  by  law.  Pen- 
sions and  allowances  to  widows  and  dependents  shall  be  fixed  by 
law.  Vested  rights  of  officials  shall  be  inviolable.  Officials  shall 
have  the  right  to  claim  the  assistance  of  the  courts  in  the  mat- 
ters that  concern  their  pecuniary  interests. 

Officials  can  be  provisionally  removed  from  their  office,  dis- 
charged, or  transferred,  whether  temporarily  or  permanently, 
to  the  retired  list,  or  to  another  office  with  a  lower  salary,  only 
in  accordance  with  the  conditions  and  formalities  established  by 
law.  An  opportunity  for  protest  and  for  a  reopening  of  the  case 
shall  be  provided  in  the  case  of  any  penalty  inflicted  in  connec- 
tion with  official  duties.  No  entries  of  unfavourable  facts  shall 
be  made  in  the  record  of  an  official  before  that  official  shall 
have  had  an  opportunity  to  furnish  an  explanation.  Every 
official  shall  have  the  right  to  look  at  his  own  record. 


444       NEW  CONSTITUTIONS  OF  EUROPE 

Art.  92.  Officials  are  servants  of  the  community  and  not 
of  a  party.  Freedom  of  political  opinion  and  freedom  of  as- 
sociation shall  be  assured  them.  They  shall  not  be  subjected 
to  any  restriction  in  this  regard. 

Art.  93.  The  officials  shall  have  their  own  representation 
in  accordance  with  more  detailed  provisions  to  be  made  by  law. 

Art.  94.  Teachers  of  both  sexes  in  the  state  schools  shall  be 
direct  officials  of  the  state.  The  obligation  to  maintain  schools 
shall  not  be  hereby  affected. 

III.  Religion  and  Religious  Associations 

Art.  95.  Full  freedom  of  creed  and  conscience  shall  be 
established.  Unhindered  observance  of  religious  rites  shall  be 
assured  and  shall  be  placed  under  the  protection  of  the  state. 
Enjoyment  of  civil  and  national  rights  and  eligibility  for  public 
offices  shall  be  independent  of  creed. 

No  one  shall  be  compelled  to  declare  his  religious  convic- 
tions. The  authorities  shall  enquire  as  to  membership  of  any 
particular  religious  association  only  in  so  far  as  rights  and  duties 
are  attached  thereto,  and  for  the  purpose  of  drawing  up  a  census 
ordered  by  law. 

No  one  shall  be  forced  to  take  part  in  any  religious  ceremony 
or  celebration. 

Where  the  existing  law  provides  for  the  taking  of  an  oath 
according  to  a  religious  formula,  the  oath  may  also  be  validly 
administered  if  the  swearer  shall  omit  the  religious  formality 
and  shall  declare  "I  swear."  Apart  from  this,  the  nature  of  the 
oath  as  prescribed  by  law  shall  remain  unchanged. 

Religious  associations  which  are  accustomed  to  use  a  form  of 
solemn  declaration  in  place  of  the  oath  shall  be  entitled  to  do  so. 

Art.  96.  Religious  associations  which  are  corporate  bodies 
recognized  by  the  law  shall  be  authorized  to  collect  contribu- 
tions from  their  members,  based  on  the  civil  taxation  lists. 

Art.  97.  The  property  and  other  rights  of  religious  associa- 
tions and  religious  unions  shall  be  guaranteed  them  for  the  pur- 
pose of  maintaining  institutions,  foundations,  and  other  under- 
takings of  religious,  educational,  or  charitable  purposes. 

Art.  98.  In  so  far  as  the  need  arises  for  religious  services 
and  ministrations  in  infirmaries,  prisons,  and  other  public  in- 
stitutions, the  religious  associations  shall  be  allowed  to  perform 
ceremonial  acts,  but  all  compulsion  shall  be  excluded  therefrom. 


CITY  OF  DANZIG  445 

Art.  99.  Sunday  and  the  public  holidays  recognized  by  the 
state  shall  be  protected  by  law  as  days  of  rest  and  spiritual 
edification. 

IV.  Education  and  Schools 

Art.  100.  Arts  and  sciences  and  their  teachings  shall  be  free. 
The  state  shall  provide  for  their  protection  and  shall  be  bound 
to  promote  their  interests  in  a  liberal  manner. 

Art.  101.  The  entire  administration  of  schools  shall  be 
governed  by  legislation,  which  shall  be  drafted  in  cooperation 
with  the  existing  organization  of  the  teaching  profession. 

The  entire  administration  of  schools  shall  be  placed  under 
state  supervision.  Inspection  of  schools  shall  be  carried  out  by 
expert  officials. 

Art.  102.  Education  shall  be  compulsory  for  all.  It  shall 
be  afforded  primarily  by  the  primary  school,  at  which  eight  years 
of  attendance  at  least  shall  be  required,  and  also  by  the  con- 
tinuation or  technical  schools  for  young  persons  of  both  sexes 
up  to  the  end  of  their  eighteenth  year.  The  maintenance  of  the 
state  schools  is  the  affair  of  the  state;  it  may  associate  the 
municipalities  in  these  duties. 

Instruction  and  materials  required  for  education  in  the  pri- 
mary and  continuation  schools  shall  be  free  of  charge. 

Art.  103.  The  public  administration  of  schools  shall  be  or- 
ganized according  to  a  uniform  principle.  Existing  schools 
of  another  type  shall  remain  unchanged.  The  legitimate  wishes 
of  parents  or  students  shall  also  be  taken  into  account  as  re- 
gards any  new  organization  of  such  schools,  provided  that  the 
orderly  conduct  of  the  schools  is  not  prejudiced  thereby. 

The  entire  system  of  primary,  secondary,  and  advanced  schools 
shall  start  from  a  common  primary  school  for  all.  In  establish- 
ing this  system  regard  shall  be  had  to  the  varied  nature  of  occu- 
pations and  professions.  In  receiving  a  child  into  any  particular 
school,  consideration  shall  be  paid  to  the  disposition  and  inclina- 
tion of  the  child  as  well  as  to  the  wishes  of  its  parents  or  guard- 
ians, and  not  to  the  economic  or  social  position  of  its  parents. 

Instruction  and  the  materials  required  for  education  shall 
also  be  provided  free  of  charge  in  the  secondary  and  advanced 
schools  for  gifted  children  of  poor  parents.  Gifted  children  of 
poor  parents  shall  be  provided  with  assistance  from  public 
funds  to  attend  advanced  schools  and  universities. 

Art.  104.     Private  schools  as  substitutes  for  state  schools 


446       NEW  CONSTITUTIONS  OF  EUROPE 

shall  require  state  authorization  and  shall  be  subject  to  state 
legislation.  Such  sanction  shall  be  granted  only  when  the  pri- 
vate school  is  not  inferior  to  the  state  school  in  its  educational 
aims  and  equipment  and  also  in  the  educational  qualifications 
of  its  teaching  staff,  and  when  a  division  of  pupils  according  to 
the  wealth  of  their  parents  is  not  thereby  encouraged.  Sanc- 
tion shall  also  be  refused  when  insufficient  provision  is  made  for 
the  civil  and  economic  position  of  the  staff. 

No  further  private  preparatory  schools  shall  be  established, 
and  those  which  exist  shall  be  closed. 

In  every  case  compensation  shall  be  awarded  for  the  closing 
of  established  private  schools,  including  preparatory  schools. 
Further  provision  will  be  prescribed  by  law. 

Art.  105.  Religious  instruction  is  a  recognized  school  sub- 
ject. It  shall  be  given  in  accordance  with  the  principles  laid 
down  by  the  religious  associations  without  prejudice  to  the 
state's  right  of  supervision. 

The  giving  of  religious  instruction  and  the  practice  of  religious 
observances  shall  be  subject  to  the  teachers'  expressed  willing- 
ness to  undertake  such  duties;  the  right  to  withdraw  a  child 
from  religious  instruction,  celebrations,  or  acts  shall  be  granted 
in  accordance  with  the  expressed  wishes  of  the  person  author- 
ized to  decide  as  to  the  child's  religious  upbringing. 

Art.  106.  In  the  course  of  instruction  in  the  state  schools 
care  shall  be  taken  not  to  offend  the  susceptibilities  of  those 
of  a  different  way  of  thinking. 

Art.  107.  Civic  rights  and  duties  shall  be  a  subject  of  in- 
struction in  schools.  Every  scholar  at  the  end  of  his  school 
period  shall  be  given  a  copy  of  the  constitution. 

Art.  108.  Works  of  artistic,  historical,  and  natural  interest, 
and  the  beauties  of  the  country  shall  be  under  the  protection 
and  care  of  the  state. 

It  is  the  duty  of  the  state  to  prevent  the  removal  of  works 
of  art  to  foreign  countries. 

V.  Economic  Life 

Art.  109.  The  rights  of  property  shall  be  assured.  Ex- 
propriation shall  take  place  only  in  accordance  with  the  provi- 
sions of  the  law  in  the  public  interest  and  in  return  for  due 
compensation;  in  case  of  dispute  recourse  may  be  had  to  the  de- 
cision of  the  courts. 


CITY  OF  DANZIG  447 

Article  110.  The  soil  and  natural  resources  shall  be  placed 
under  legislation  which  shall  prevent  all  misuse,  and  which  shall 
enable  every  family  of  the  Free  Hanseatic  City  to  obtain  a  home- 
stead, or,  if  suitably  trained,  a  farm  permanently  secured  to 
meet  their  needs.  Large  families,  those  disabled  by  the  war, 
and  those  physically  affected  as  a  result  of  their  employment, 
shall  be  given  special  consideration  in  the  housing  legislation 
which  is  to  be  passed. 

The  unearned  increment  which  arises  from  landed  property 
without  any  expenditure  of  labor  or  capital  shall  be  applied  to 
the  use  of  the  community. 

Art.  111.  Special  legislation  may  provide  for  the  transference 
of  private  industrial  undertakings  to  public  ownership  in  return 
for  compensation,  in  so  far  as  the  public  welfare  may  demand. 

Art.  112.  Freedom  of  association  for  the  purpose  of  guaran- 
teeing and  promoting  the  interests  of  labor  and  industrial  con- 
ditions shall  be  assured  to  every  man  and  to  every  occupation. 
Any  conventions  or  provisions  which  attempt  to  limit  or  restrain 
such  freedom  shall  be  contrary  to  law. 

Art.  113.  In  order  to  promote  health  and  efficiency  for  work, 
to  protect  motherhood  and  to  provide  against  the  economic 
consequences  of  old  age,  weakness,  and  the  vicissitudes  of  life, 
including  unemployment,  the  state  shall  provide  a  comprehen- 
sive system  of  insurance,  in  the  drafting  of  which  the  insured 
shall  have  a  determining  influence. 

Art.  114.  Workers  and  employees  shall  establish  from 
amongst  their  number  separate  trades  councils  for  workmen 
and  employees.  These  shall  enjoy  equal  standing,  and  shall 
cooperate  with  the  employers  in  the  regulation  of  questions  con- 
cerning pay  and  labor  conditions.  Details  will  be  determined 
by  legislation. 

The  organizations  of  both  sides  and  their  mutual  agreements 
shall  be  recognized. 

In  order  to  secure  the  social  and  economic  interests  of  work- 
ers and  employees  and  to  promote  the  collective  economic  de- 
velopment of  productive  efficiency,  a  Labor  Office  shall  be  es- 
tablished in  accordance  with  Article  45,  Paragraph  2. 

Final  and  Transitional  Provisions 

Art.  115.  The  constitution  of  the  German  Empire  of  the 
llth  August,  1919,  shall  be  abolished. 


448       NEW  CONSTITUTIONS  OF  EUROPE 

All  laws  and  decrees  which  are  valid  in  the  territory  of  the 
Free  and  Hanseatic  City  of  Danzig  at  the  time  of  the  coming 
into  operation  of  this  constitution  shall  remain  in  force  in  so 
far  as  they  are  not  suspended  by  this  constitution  or  by  law. 

The  Popular  Assembly  shall,  as  soon  as  it  meets,  immediately 
appoint  a  committee  to  reexamine  all  decrees  which  have  been 
proclaimed  since  the  10th  January,  1920. 

Art.  116.  The  Constituent  Assembly,  within  three  months 
at  the  latest  from  the  establishment  of  the  Free  and  Hanseatic 
City  shall  declare  itself  to  be  the  first  Popular  Assembly  to  hold 
office  up  to  the  31st  December,  1923,  or  shall  fix  its  dissolution 
at  a  date  to  be  determined  by  it  and  shall  issue  a  decree  for  new 
elections;  in  the  latter  case  it  shall  continue  to  be  the  legislative 
body  until  the  meeting  of  the  first  Popular  Assembly. 

Until  the  constitution  of  the  Senate,  the  Council  of  State 
in  existence  at  the  time  of  the  establishment  of  the  Free  and 
Hanseatic  City  shall  continue  its  duties  as  the  provisional  gov- 
ernment. 

The  City  Council  and  the  Bench  of  Magistrates  of  the  City 
of  Danzig  shall  remain  in  office  until  such  time  as  their  duties 
are  taken  over  by  the  Municipal  Corporation  and  the  Senate. 

The  present  constitution  of  the  Free  and  Hanseatic  City  of 
Danzig  has  been  adopted  by  the  Constituent  Assembly  in  its 
22nd  plenary  session  on  August  llth,  1920. 

(Signed)  D.  REINHARD, 

President. 
DANZIG,  August  14th,  1920 


3.  RESOLUTION  ADOPTED  BY  THE  COUNCIL  OF  THE 
LEAGUE  OF  NATIONS,  NOVEMBER  17,  1920.1 

I.  The  Council  of  the  League  of  Nations  approves  of  the 
conclusions  of  the  annexed  report  by  the  Japanese  Representa- 
tive, and  declares: 

That  the  Free  City  of  Danzig,  from  the  time  of  its  establish- 
ment by  the  Principal  Allied  Powers  in  accordance  with  Article 
102  of  the  Treaty  of  Peace  of  Versailles,  will  be  placed  under  the 
protection  of  the  League  of  Nations,  and: 

1  Journal  of  the  First  Assembly  of  the  League  of  Nations,  Geneva,  1920,  No.  6, 
20th  November,  1920,  p.  32.  For  the  Report  to  the  Council  by  His  Excellency, 
Viscount  Ishii,  Japanese  Representative,  see  ibid.,  p.  33. 


CITY  OP  DANZIG  449 

That  the  constitution  of  the  Free  City  of  Danzig,  drawn  up 
by  the  duly  appointed  representatives  of  the  Free  City,  will  at 
the  same  time  be  placed  under  the  guarantee  of  the  League  of 
Nations. 

The  Council  decides  that: 

The  Polish  Government  appears  particularly  fitted  to  be,  if 
the  circumstances  require  it,  entrusted  by  the  League  of  Nations 
with  the  duty  of  ensuring  the  defence  of  the  Free  City. 

The  Permanent  Advisory  Commission  on  Military,  Naval  and 
Air  Questions  is  instructed  to  consider  the  measures  which  will 
ensure  the  most  effective  defence  of  Danzig  in  the  cases  men- 
tioned in  the  Japanese  Representative's  Report. 

II.  The  acting  High  Commissioner  of  the  League  of  Nations 
is  authorized  to  communicate  the  foregoing,  together  with  the 
text  of  annexed  report,  to  the  Constituent  Assembly  of  the  Free 
City  of  Danzig.  He  will  add  that  the  Constituent  Assembly  is 
asked  to  submit  to  him  within  three  weeks  the  final  text  of  the 
constitution,  revised  as  follows: 

(a)  that  the  word  "Hanseatic"  should  be  omitted  in  all 
the  articles  of  the  constitution  where  it  occurs. 

(b)  that  Articles  4  and  5  of  the  constitution  should  form 
one  article. 

(c)  that  a  clause  should  be  inserted  in  the  constitution 
to  the  effect  that  the  provisions  of  Articles  41  and  44  (Para- 
graph 6)   should  be   understood  to  affect  in  no  way   the 
provisions  of  article   104,  No.  6,  of  the  Treaty  of   Peace 
of  Versailles. 

(d)  that  a  clause  should  be  inserted  in  the  constitution 
to  the  effect  that  the  amendments  to  the  constitution  cannot 
come  into  force  before  they  have  been  communicated  to 
the  League  of  Nations  and  before  the  League  has  declared 
that  it  has  no  objection  to  make. 

(e)  that  a  clause  should  be  inserted  in  the  constitution  to 
the  effect  that  the  Government  of  Danzig  shall  submit  for 
the  examination  of  the  League  of  Nations,  within  six  months 
following  the  High  Commissioner's  communication,  the  prin- 
ciples of  the  draft  of  the  law  provided  for  by  Article  71  of 
the  constitution  which  deals  with  citizenship  of  the  state 
of  Danzig. 

(f)  that  a  clause  should  be  inserted  in  the  constitution  to 
the  effect  that  the  League  of  Nations  has  the  right  to  re- 
quire at  any   time   from  the    government  of   Danzig   au- 


450       NEW  CONSTITUTIONS  OF  EUROPE 

thentic  information  on  the  public  affairs  of  the  Free  City, 
and  that  effect  should  always  be  given  to  such  a  request, 
(g)  that  a  clause  be  inserted  in  the  constitution  to  the 
effect  that  the  Free  City  of  Danzig  shall  not  be  used  as 
a  military  or  naval  base,  that  it  must  not  put  up  forti- 
fications, nor  authorize  the  manufacture  of  munitions  or 
war  materials  within  its  territory  without  having  ob- 
tained in  each  case  the  consent  of  the  League  of 
Nations. 

III.  The  High  Commissioner  shall  notify  at  the  same  time 
the  Constituent  Assembly  at  Danzig  that  the  Council  of  the 
League  of  Nations  has  taken  cognizance  of  the  Draft  Conven- 
tion between  the  Free  City  of  Danzig  and  the  Polish  Govern- 
ment, which  in  accordance  with  Article  104  of  the  Treaty  of 
Peace  of  Versailles,  has  been  negotiated  by  the  Principal  Allied 
Powers.     He  will  further  notify  the  Constituent  Assembly  that 
no  modification  contrary  to  the  Statute  of  the  Free  City  shall 
be  introduced  into  this  convention  without  the  previous  assent 
of  the  League. 

IV.  The  functions  of  the  provisional  High  Commissioner,  Sir 
Reginald  Tower,  having  come  to  an  end  by  the  Constitution  of 
the  Free  City,  and  in  view  of  the  fact  that  he  has  expressed  his 
intention  of  not  accepting  a  definitive  appointment,  the  Council 
of  the  League  of  Nations  requests  the  Secretary-General  to 
convey  to  Sir  Reginald  Tower  the  thanks  of  the  League  of  Na- 
tions for  the  services  he  has  rendered  in  his  position  as  High 
Commissioner. 

V.  The  acting  President  of  the  Council,  together  with  the 
Japanese  Representative  and  the  Secretary-General,  are  asked 
to  make  proposals  to  the  Council  as  to  the  choice  of  a  High 
Commissioner  of  the  League  of  Nations.     The  Council  will  ap- 
point a  High  Commissioner  for  a  period  of  three  years.     The 
appointment  of  the  High  Commissioner  may  be  renewed. 

The  High  Commissioner  can  always  be  dismissed  by  the  Coun- 
cil of  the  League  of  Nations.  The  salary  of  the  Permanent 
High  Commissioner  shall  be  fixed  at  100,000  gold  francs  per 
annum.  The  High  Commissioner  shall  in  addition  receive  an 
allowance  sufficient  to  cover  expenses  of  official  journeys,  cor- 
respondence, the  maintenance  of  his  office,  and  the  salaries  of 
his  staff. 

The  President  of  the  Council,  the  Representative  of  Japan, 
and  the  Secretary-General  are  requested  to  bring  about  an  agree- 


CITY  OF  DANZIG  451 

ment  between  the  Polish  Government  and  the  Free  City  of 
Danzig,  with  regard  to  their  respective  contributions  toward 
the  upkeep  of  the  post  of  High  Commissioner  of  Danzig.  The 
contributions  of  the  Polish  Government  and  the  Free  City  of 
Danzig  shall  be  paid  into  the  funds  of  the  League  of  Nations, 
which  will  place  the  necessary  sums  at  the  disposal  of  the  High 
Commissioner.  The  accounts  of  the  High  Commissioner  shall 
be  audited  by  the  Financial  Administration  of  the  Secretariat 
of  the  League  of  Nations. 

VI.  The  expenses  incurred  until  the  Permanent  High  Com- 
missioner takes  up  his  duties,  which  have  been  advanced  by 
the  Secretariat  of  the  League  of  Nations,  shall  be  borne  by  the 
Free  City. 

VII.  The  Secretary-General  is  entrusted  with  the  duty  of 
communicating  this  resolution  to  all  concerned. 


Geography 
of  Esthonia 


Local  self- 
government 
in  1917 


CHAPTER  XVIII 
ESTHONIA 

1.     HISTORICAL  NOTE 

"THE  independent  Republic  of  Esthonia  is  composed 
of  the  former  Russian  Government  of  Esthonia,  the  north- 
ern part  (to  Walk)  of  Livonia,  the  western  corners  of  the 
Governments  of  Petrograd  and  Pskov  and  the  adjacent 
islands.  On  the  north  and  west  it  is  bounded  by  the 
Baltic  Sea  (Gulf  of  Finland,  Gulf  of  Riga),  on  the  east 
by  Russia,  and  on  the  south  by  Latvia.  With  an  area  of 
47,500  kilometers,  it  contains  very  nearly  1,750,000  in- 
habitants, of  whom  90  per  cent,  are  Esths,  a  race  akin  in 
ancestry  and  language  to  the  Finns.  Protestantism  is  the 
practically  universal  faith.  The  Esths  have  not  been 
free  since  the  day  of  heathenism.  Germans,  Danes, 
Swedes,  Poles  have  all  possessed  the  land  as  conquerors, 
and  finally  Russia  absorbed  the  whole  of  the  race  into 
her  Empire.  In  spite  of  age-long  servitude,  the  depressing 
rule  of  the  German  landowners  (Baits),  and  intense  Russifi- 
cation,  the  Esthonian  language  and  culture  not  merely 
maintained  themselves  but  appreciably  advanced,  foster- 
ing, and  being  fostered,  by  that  growing  sense  of  national- 
ism that  characterized  the  two  decades  before  the  war. 
The  movement  for  autonomy  was  already  important  when 
the  Russian  revolution  broke  out.  On  April  12,  1917,  a 
decree  of  the  Russian  Provisional  Government  provided 
for  local  self-government,  under  a  National  Council,  for 
the  Esthonian  districts.  This  Council  (Maapdew)  met 
for  the  first  time  on  July  14,  and  Esthonia  virtually  became 
a  federal  state  in  a  Russian  confederation.  On  the  Bol- 

452 


ESTHONIA 


453 


shevik  coup  d'etat  of  November,  the  National  Council  de- 
clared itself  the  sovereign  power  in  Esthonia  until  a 
constituent  assembly  could  meet.  On  January  28,  1918, 
the  Baits  formally  invited  Germany  to  occupy  the  country, 
to  which  the  Council,  after  protesting  on  February  7,  re- 
plied on  February  24  by  declaring  Esthonia  an  indepen- 
dent state,  and  constituting  a  provisional  government 
under  M.  Pacts.  The  provisional  government  was  dis- 
solved by  the  German  invaders,  and  M.  Pacts  arrested; 
but  the  National  Council  maintained  itself  by  missions 
abroad,  and  was  recognized  as  a  de  facto  governing  body 
by  Britain  (May  3),  France  (May  15),  and  Italy  (May  29), 
a  recognition  amplified  by  the  British  declaration  of 
September  10.  As  soon  as  the  German  evacuation  began, 
the  National  Council  resumed  power,  reconstituted  the 
provisional  government,  and  held  elections  for  the  con- 
stituent assembly,  which  was  opened  on  April  23, 1919,  and 
on  May  19  proclaimed  Esthonia  an  independent  Republic. 

"A  peace  with  Bolshevik  Russia  which  recognized  the  de 
jure  independence  of  Esthonia  was  signed  at  Tartu  (Dorpat) 
on  February  2,  1920.  Finland  recognized  the  republic  as 
de  jure  independent,  and  by  June  7,  de  facto  recognition 
had  been  accorded  by  practically  all  the  Powers. 

"The  first  task  of  the  assembly  was  to  frame  a  constitu- 
tion. The  work  was  entrusted  to  a  commission  of  fourteen 
members,  representing  six  parties,  and  including  two  la- 
dies. M.  Jaan  Poska1  acted  as  chairman.  A  short  pre- 
liminary constitution — organic  law — was  drafted,  sub- 
mitted to  the  assembly  on  May  21,  1919,  and  passed  on 
June  4.  It  came  into  force  on  July  9,  and  remained  in 
force  till  the  State  Assembly  elected  by  the  elections  of 
November  27-29,  1920,  met. 

"The  commission  submitted  a  draft  scheme  to  the 
constituent  assembly  on  May  27,  1920,  but  it  was  greatly 

!M.  Poska  died  on  March  7,  1920,   and  was   succeeded  as  chairman  by 
M.  Anderkop. 


Recognition, 
1918 


Complete 

recognition, 

1920 


The  Con- 
stituent 
Assembly 
of  1919 


454       NEW  CONSTITUTIONS  OF  EUROPE 

The  Consti-      altered  in  particularly  keen  debates,  lasting  until  June  15, 
tution  of  when  it  was  passed  in  its  present  form.     The  draft  had  at 

least  the  outstanding  merit  of  being  short  and  intelligible, 
and  bears  the  mark  of  the  politician's  handiwork,  as  well 
as  the  jurist's.  The  commission  spent  a  whole  year  on  it 
in  genuine  hard  work,  in  which  they  were  assisted  by  the 
best  jurists  in  Esthonia  in  exhaustive  examination  of 
foreign  constitutions,  notably  those  of  the  United  States, 
France,  and  especially  Switzerland.  The  draft  scheme  is 
simply  a  bold  enough  attempt  at  a  democratic  constitution 
on  conventional  lines.  It  is,  in  fact,  little  more  than  an 
amplification  of  the  organic  law  of  June,  1919,  and  has 
clear  traces  of  imitation  of  the  constitutions  consulted. 
In  its  final  form,  however,  it  is  radically  changed,  and  has 
several  important  features  of  deep  interest  to  the  student. 
"As  it  now  stands,  the  constitution  contains  a  preamble 
stating  that  the  Esthonian  people  has  drawn  it  up  and 
accepted  it  through  the  constituent  assembly."1 


2.  THE  CONSTITUTION  OF  THE  ESTHONIAN 
REPUBLIC 

Passed  by  the  Constituent  Assembly,  June  15,  1920 

The  Esthonian  people  with  unshaken  faith  and  the  resolute 
will  to  create  a  State  based  on  justice,  law,  and  liberty,  for  the 

1R.  T.  Clark,  "The  Constitution  of  Esthonia,"  Journal  of  Comparative  Legisla- 
tion and  International  Law,  Vol.  Ill,  pp.  245,  246  (October,  1921). 

This  text  of  the  constitution  is  reprinted  from  the  Baltic  Review,  September 
and  October,  1920  (Vol.  I,  pp.  67-70;  111-113).  The  origin  of  the  text  is 
not  stated  but  it  is  identical  (except  for  misprints)  with  the  translation  hi  Ad- 
mission de  FEsthonie  dans  la  societe  des  nations,  Memorandum  du  secretaire 
general,  SocieiS  des  Nations,  Document  de  1'Assemblee,  No.  70,  Annexe  VI 
(November  24,  1920).  This  document  includes  a  French  translation  also.  A 
few  obvious  misprints  have  been  corrected,  but  the  awkward  phrases  which  in 
some  cases  give  the  impression  of  error  are  in  the  original.  The  text  of  the 
organic  law  is  published  in  the  Bulletin  d'Esthonie,  No.  5;  and  No.  10  of  the 
same  periodical  contains  a  summary  of  the  draft  of  the  constitution.  The  very 
important  agrarian  law  is  to  be  found  in  the  Bulletin  d'Esthonie,  No.  5.  A  pre- 
liminary study  of  the  constitution  was  made  by  Mr.  Clark,  "Baltic  Politics:  the 
Esthonian  Constitution,"  New  Europe,  August  12,  1920.  See  also  J.  Sapas, 
"The  Development  of  the  Esthonian  State,"  Baltic  Review,  December,  1920. 


ESTHONIA  455 

defence  of  internal  and  external  peace,  and  as  a  pledge  for  the 
social  progress  and  general  welfare  of  present  and  future  genera- 
tions, has  drawn  up  and  accepted  through  the  Constituent  As- 
sembly the  Constitution  as  follows: — 

I.  GENERAL  DISPOSITIONS 

Article  1.  Esthonia  is  an  independent  autonomous  Republic 
in  which  the  power  of  the  state  is  in  the  hands  of  the  people. 

Art.  2.  To  the  territory  of  Esthonia  belong  Harjumaa, 
Laanemaa,  Jarwamaa,  Wirumaa,  with  the  town  of  Narwa  and 
district,  Tartumaa,  Wiljandimaa,  Parnumaa,  the  town  of  Walk, 
Worumaa,  Petserimaa  and  other  border  regions  inhabited  by 
Esthonians,  the  islands  of  Saaremaa  (Oesel),  Muhumaa  (Moon), 
and  Hiiumaa  (Dago),  and  other  islands  and  reefs  situated  in 
Esthonian  waters. 

The  fixation  of  the  Esthonian  frontiers  will  be  determined 
by  international  treaties. 

Art.  3.  The  Esthonian  state  power  cannot  be  exercised  by 
anybody  otherwise  than  on  the  basis  of  the  constitution  and  the 
laws  passed  in  accordance  with  the  constitution. 

Art.  4.  The  laws  in  force  in  Esthonia  are  those  passed  or 
recognized  by  her  own  institutions.  The  generally  accepted  pre- 
cepts of  international  law  are  valid  in  Esthonia  as  an  inseparable 
part  of  her  juridical  order. 

Ignorance  of  the  law  can  in  no  case  be  pleaded  as  an  excuse. 

Art.  5.  The  state  language  of  the  Esthonian  Republic  is 
Esthonian. 

II.  FUNDAMENTAL  RIGHTS  OF  ESTHONIAN  CITIZENS 

Art.  6.  All  Esthonian  citizens  are  equal  in  the  eyes  of  law. 
There  cannot  be  any  public  privileges  or  prejudices  derived 
from  birth,  religion,  sex,  rank,  or  nationality.  In  Esthonia 
there  are  no  legal  class  divisions  or  titles. 

Art.  7.  The  Esthonian  Republic  confers  no  decorations  or 
marks  of  distinction  on  its  citizens,  excepting  members  of  the 
defence  forces  in  time  of  war.  Esthonian  citizens  have  likewise 
no  right  to  accept  orders  or  distinctions  from  foreign  states. 

Art.  8.  Personal  inviolability  is  guaranteed  in  Esthonia. 
No  one  can  be  prosecuted  except  in  cases  and  ways  foreseen  by 
the  law.  Unless  caught  in  the  act  no  person  can  be  arrested  or 
the  personal  liberty  be  restricted  otherwise  than  by  decision  of 


456       NEW  CONSTITUTIONS  OF  EUROPE 

the  judicial  authorities,  and  this  decision,  with  all  grounds, 
must  be  communicated  to  the  person  arrested  at  the  latest  three 
days  after  arrest.  Any  citizen  has  the  right  to  demand  the  com- 
munication of  the  above  decision  to  the  imprisoned,  if  this  has 
not  been  done  in  the  period  mentioned. 

It  is  impossible  to  transfer  any  citizen  against  his  will  for 
trial  by  any  other  court  than  the  one  designated  by  the  law. 

Art.  9.  No  punishment  can  be  inflicted  on  anybody  for  a 
deed  not  acknowledged  by  the  law  as  punishable  before  the  crime 
was  committed. 

Art.  10.  The  homestead  is  inviolable.  No  forcible  entrance 
of  the  home  or  search  there  is  allowed  except  in  cases  and  in 
execution  of  the  requirements  indicated  by  law. 

Art.  11.  In  Esthonia  there  is  freedom  of  religion  and  con- 
science. Nobody  is  obliged  to  perform  ritualistic  acts  or  to  be 
a  member  of  a  religious  body  or  undertake  public  obligations  in 
the  interests  of  same. 

The  practice  of  religious  acts  is  not  hindered,  provided  it 
does  not  interfere  with  public  order  and  morals. 

Creed  and  outlook  cannot  be  made  the  excuse  for  any  offence 
or  for  the  avoiding  of  the  duties  of  a  citizen. 

There  is  no  state  religion  in  Esthonia. 

Art.  12.  Science,  art,  and  the  teaching  of  same  are  free  in 
Esthonia.  Education  is  compulsory  for  children  arrived  at  the 
school  age,  and  is  gratuitous  in  elementary  schools.  The  mi- 
nority nationalities  are  guaranteed  education  in  their  mother 
tongue.  Education  is  carried  out  under  the  control  of  govern- 
ment. 

Autonomy  is  guaranteed  to  high  schools  within  the  limits 
foreseen  by  the  statutes  of  the  institutions  passed  in  legislative 
way. 

Art.  13.  In  Esthonia  there  is  freedom  for  the  expression  of 
personal  ideas  in  words,  print,  letters,  pictures,  and  sculpture. 
This  freedom  can  be  restricted  only  in  the  defence  of  the  state 
and  morals. 

There  is  no  censorship  in  Esthonia. 

Art.  14.  In  Esthonia  is  guaranteed  the  secrecy  of  messages 
and  letters  transmitted  through  the  post,  telegraph,  telephone, 
and  any  other  general  means.  Exception  can  be  made  only  by 
the  judicial  authorities  in  cases  foreseen  by  law. 

Art.  15.  The  right  to  apply  or  address  complaints  to  pub- 
lic departments  is  guaranteed  in  Esthonia.  The  applications  or 


ESTHONIA  457 

complaints  must  not  be  accompanied  by  coercive  measures. 
The  departments  in  question  are  bound  to  give  the  matter  legal 
motion. 

Art.  16.  Previous  permission  need  not  be  obtained  for  the 
arraignment  of  government  officials. 

Art.  17.  Removal  and  change  of  domicile  are  free  in  Esthonia. 
In  this  freedom  nobody  can  be  restricted  or  hindered  otherwise 
than  by  the  judicial  authorities. 

In  the  interests  of  public  health  such  freedom  can  be  re- 
stricted also  by  other  authorities  in  cases  and  in  ways  foreseen 
in  the  corresponding  laws. 

Art.  18.  All  Esthonian  citizens  have  the  right  to  hold  pub- 
lic meetings  unarmed,  provided  they  are  not  disturbing  to  the 
public  peace. 

The  forming  of  associations  and  unions  is  free  in  Esthonia. 

Freedom  to  strike  is  guaranteed  in  Esthonia. 

The  law  can  restrict  these  rights  only  in  the  interest  of  public 
safety. 

Art.  19.  Liberty  in  the  choice  of  occupation,  the  opening 
of  business  concerns  and  exploitation  of  same,  as  well  in  agricul- 
ture, commerce,  and  industry,  as  in  other  economic  branches,  is 
guaranteed  in  Esthonia.  Nobody  can  be  restricted  or  hindered 
in  this  freedom  otherwise  than  on  the  basis  and  within  the  lim- 
its of  the  laws. 

Art.  20.  Every  Esthonian  citizen  is  free  to  determine  his 
or  her  nationality.  In  cases  where  individual  choice  is  impos- 
sible, it  will  be  done  in  the  way  foreseen  by  law. 

Art.  21.  The  members  of  minority  nationalities  within  the 
confines  of  Esthonia  may  form  corresponding  autonomous  insti- 
tutions for  the  promotion  of  the  interests  of  their  national  cul- 
ture and  welfare  in  so  far  as  these  do  not  run  contrary  to  the 
interests  of  the  state. 

Art.  22.  In  those  parts  where  the  majority  of  the  inhabi- 
tants are  not  Esthonian  but  consists  of  local  minority  nationals, 
the  business  language  in  the  local  self-government  institutions 
can  be  in  the  language  of  these  minority  nationals,  whilst  every- 
body has  the  right  to  use  the  state  language  in  such  institu- 
tions. The  local  self-government  institutions  in  which  the 
language  of  the  minority  is  used  must  in  their  intercourse 
with  state  institutions  employ  the  state  language,  as  also  with 
other  local  self-government  institutions  where  the  language  of 
this  minority  nationality  is  not  used. 


458       NEW  CONSTITUTIONS  OF  EUROPE 

Art.  23.  Citizens  of  German,  Russian,  and  Swedish  national- 
ity have  the  right  to  address  themselves  to  the  state  central  in- 
stitutions in  the  writing  of  their  own  language.  The  use  of  the 
language  of  these  nationals  in  court,  as  also  in  the  institution 
of  self-government,  will  be  decided  in  detail  by  special  law. 

Art.  24.  The  right  of  private  property  is  guaranteed  in  Es- 
thonia  to  every  citizen.  Without  the  owner's  consent  it  can 
be  expropriated  only  in  the  common  interest  in  accordance  with 
the  corresponding  laws  and  in  the  ways  foreseen  in  the  laws. 

Art.  25.  The  organization  of  the  economic  life  in  Esthonia 
must  correspond  with  the  principles  of  justice,  the  object  of 
which  is  the  securing  of  conditions  of  living  worthy  of  human  be- 
ings by  corresponding  laws  relating  to  the  acquiring  of  land  for 
cultivation  and  a  home,  and  the  obtaining  of  employment,  as 
well  as  the  necessary  support  for  the  protection  of  maternity, 
labor,  youth,  old  age,  disability,  and  in  cases  of  accident. 

Art.  26.  The  rights  and  freedom  of  citizens  referred  to  in 
Articles  6—24  do  not  exclude  other  rights  emanating  from  the 
principles  of  this  constitution  or  which  are  in  agreement  with  it. 

Extraordinary  restrictions  of  the  freedom  and  fundamental 
rights  of  the  citizens  come  into  force  in  the  event  of  the  proc- 
lamation of  a  state  of  defence  during  a  stated  period,  announced 
in  the  legal  way  on  the  basis  and  within  the  limits  of  the  cor- 
responding laws. 

III.  THE  PEOPLE 

Art.  27.  The  supreme  executor  of  the  state  power  in  Es- 
thonia is  the  people  itself,  through  the  medium  of  the  citizens 
having  the  right  to  vote.  Every  citizen  arrived  at  the  age  of 
twenty  and  of  Esthonian  citizenship  for  a  consecutive  period  of 
at  least  one  year  has  the  right  to  vote. 

Art.  28.     Citizens  are  not  enfranchised: 

(1)  who  in  a  legal  way  are  pronounced  to  be  idiots  or  luna- 
tics; and 

(2)  the  blind,  deaf-mutes,  and  persons  considered  as  wasters 
when  they  have  been  placed  under  guardianship. 

The  vote  will  be  withheld  from  certain  categories  of  criminals 
according  to  the  electoral  law  of  the  State  Assembly. 
Art.  29.     The  people  exercises  the  state  power: 

(1)  by  plebiscite; 

(2)  by  their  initiative  in  legislation;  and 

(3)  by  the  election  of  the  State  Assembly. 


ESTHONIA  459 

Art.  SO.  Every  law  passed  by  the  State  Assembly  remains 
unpromulgated  for  a  period  of  two  months  dating  from  the  day 
of  its  passing,  if  one-third  of  the  legal  number  of  members  of  the 
State  Assembly  requires  it.  If  during  this  period  25,000  en- 
franchised citizens  demand  that  this  law  be  submitted  to  a 
plebiscite  for  acceptance  or  rejection,  the  promulgation  or 
non-promulgation  of  this  particular  law  will  depend  on  the 
results  of  this  plebiscite. 

Art.  31.  The  procedure  followed  in  the  legislative  initiative 
of  the  people  is  that  25,000  of  the  enfranchised  citizens  have 
the  right  to  require  that  a  law  shall  be  passed,  changed,  or  can- 
celled. The  respective  request  in  the  form  of  an  elaborated 
draft  will  be  submitted  to  the  State  Assembly.  The  State  As- 
sembly can  either  pass  this  draft  as  a  law  or  reject  it.  In  the 
latter  case  the  draft  will  be  submitted  to  the  people  in  the  form 
of  a  plebiscite  for  acceptance  or  rejection.  If  in  the  plebiscite 
the  majority  decide  in  the  favor  of  the  law  in  question,  it  ac- 
quires the  force  of  a  law. 

Art.  32.  If  the  people  reject  a  law  passed  by  the  State  As- 
sembly or  accept  a  law  rejected  by  the  Assembly,  new  elections 
of  the  State  Assembly  will  be  proclaimed,  these  elections  to  take 
place  not  later  than  seventy-five  days  after  the  plebiscite. 

Art.  33.  Plebiscites  must  be  conducted  under  the  control  of 
the  Presidium  of  the  State  Assembly.  The  basis  and  procedure 
of  the  plebiscite  are  ordained  by  a  special  law. 

Art.  34.  The  budget,  the  raising  of  loans,  income  tax  laws, 
declaration  of  war  and  the  making  of  peace,  declaration  of  a  state 
of  defence  and  termination  of  same,  declaration  of  mobilization 
and  demobilization,  as  well  as  treaties  with  foreign  states,  are 
not  subject  to  a  plebiscite  and  cannot  be  decided  by  a  plebiscite. 

IV.  THE  STATE  ASSEMBLY 

Art.  35.  As  the  representative  of  the  people  the  State  As- 
sembly exercises  the  legislative  power. 

Art.  36.  The  State  Assembly  consists  of  100  members  elected 
by  universal,  equal,  direct,  and  secret  suffrage  on  the  principle 
of  proportional  representation.  The  State  Assembly  has  the 
right  to  augment  the  number  of  its  members.  The  law  estab- 
lished in  regard  to  this  will  come  into  force  at  the  next  elections 
of  the  State  Assembly.  The  electoral  law  of  the  State  Assembly 
will  be  passed  as  a  special  law. 


460       NEW  CONSTITUTIONS  OF  EUROPE 

Art.  37.  Every  enfranchised  citizen  has  the  right  to  partici- 
pate in  the  election  of  the  State  Assembly  or  allow  himself  to  be 
elected  a  member  of  the  State  Assembly. 

Art.  38.  The  members  of  the  State  Assembly,  with  the  ex- 
ception of  deputies  of  members  of  the  Republican  Government, 
cannot  be  appointed  to  any  office  by  the  Republican  Govern- 
ment or  its  institutions. 

Art.  39.  Every  three  years  elections  of  the  State  Assembly 
are  to  take  place.  The  beginning  of  the  powers  of  the  members 
of  the  State  Assembly  dates  from  the  declaration  of  the  results 
of  the  election. 

Art.  40.  In  the  event  of  a  member  of  the  State  Assembly 
losing  his  vote  or  of  his  detention  by  consent  of  the  State  As- 
sembly or  his  death  or  resignation,  he  will  be  replaced  by  a  new 
member,  according  to  the  electoral  law,  until  the  term  mentioned 
in  the  foregoing  paragraph. 

Art.  41.  The  State  Assembly  meets  for  ordinary  sessions  on 
the  first  Monday  of  October  of  each  year. 

Art.  42.  The  Presidium  of  the  State  Assembly  can  summon 
the  State  Assembly  for  extraordinary  sittings  when  necessitated 
by  circumstances.  They  are  obliged  to  do  this  if  it  is  demanded 
by  the  Republican  Government  or  one-fourth  of  the  legal  num- 
ber of  members  of  the  State  Assembly. 

Art.  43.  The  State  Assembly  elects  the  President  and  the 
other  members  of  the  Presidium  at  the  first  meeting  after  the 
elections.  This  meeting  is  presided  over  by  the  chairman  of 
the  previous  State  Assembly  until  the  election  of  the  President. 

Art.  44.  The  State  Assembly  issues  its  standing  orders  which 
shall  be  promulgated  as  law. 

Art.  45.  The  members  of  the  State  Assembly  are  not  bound 
by  mandates. 

Art.  46.  The  State  Assembly  can  act  when  at  least  one- 
half  of  the  legal  number  of  members  are  present. 

Art.  47.  The  meetings  of  the  State  Assembly  are  public. 
Only  in  extraordinary  cases,  if  two-thirds  of  the  members  agree, 
the  sitting  of  the  State  Assembly  can  be  declared  secret. 

Art.  48.  The  members  of  the  State  Assembly  have  no  re- 
sponsibility for  their  political  declarations  in  the  State  Assem- 
bly or  in  its  committees,  except  that  foreseen  in  the  standing 
orders. 

Art.  49.  Without  the  consent  of  the  State  Assembly  its 
members  cannot  be  arrested  except  in  case  they  are  detected 


ESTHONIA  461 

flagrante  delido.  In  such  cases  the  arrest,  together  with  its 
reasons,  must  be  communicated  at  the  latest  forty-eight  hours 
after  to  the  Presidium  of  the  State  Assembly,  which  will  submit 
it  to  the  decision  of  the  State  Assembly  at  its  next  meeting. 

The  State  Assembly  has  the  right  to  postpone  the  imprison- 
ment or  any  other  restriction  of  one  of  its  members  until  the 
Assembly  vacation  or  until  the  expiration  of  his  membership. 

Art.  50.  Members  of  the  State  Assembly  are  exempted  from 
defence  service  during  the  period  of  their  membership. 

Art.  51.  Members  of  the  State  Assembly  are  in  receipt  of 
salaries  and  travelling  expenses,  the  amount  of  which  is  fixed 
by  law  and  can  only  be  altered  by  the  State  Assembly  for  the 
subsequent  Assemblies. 

Art.  52.  The  State  Assembly  passes  laws,  fixes  the  budget, 
the  state  revenue,  and  expenditure,  and  decides  about  loans  and 
other  matters  on  the  basis  of  the  constitution. 

Art.  53.  The  laws  passed  by  the  State  Assembly  are  pro- 
mulgated by  the  Presidium  of  the  State  Assembly. 

Art.  54.  If  the  day  and  date  are  not  foreseen  in  the  law 
itself,  it  becomes  operative  on  the  tenth  day  after  its  promulga- 
tion in  the  State  Journal  (Riigi  Teatajd). 

Art.  55.  The  State  Assembly  through  its  corresponding 
institutions  controls  the  economic  life  of  the  state  enterprises 
and  institutions  as  well  as  the  carrying  out  of  the  state  budget. 

Art.  56.  Each  member  of  the  State  Assembly  has  the  right 
to  put  questions  at  the  sittings  of  the  Assembly  to  the  Govern- 
ment. One-fourth  of  the  legal  number  of  members  of  the  State 
Assembly  has  the  right  to  interpellate,  on  which  an  explanation 
must  be  given. 

V.  THE  GOVERNMENT 

Art.  57.  The  Republican  Government  executes  the  govern- 
ing power  in  Esthonia. 

Art.  58.  The  Government  consists  of  the  State  Head  (Riigi- 
wanem)  and  ministers.  The  number  of  the  latter,  their  office, 
and  detailed  order  of  business  are  to  be  established  by  special 
law. 

Art.  59.  The  State  Assembly  forms  the  Government  and  ac- 
cepts its  resignation.  On  the  resignation  of  a  minister,  his 
duties  are  to  be  performed  by  a  member  of  the  Government  who 
is  nominated  by  the  latter,  until  a  new  minister  enters  into  office. 

Art.  60.     The  Republican  Government  direct  the  home  and 


462       NEW  CONSTITUTIONS  OF  EUROPE 

foreign  policy,  attend  to  the  internal  and  external  security  and 
the  observance  of  the  laws.     They: 

(1)  Prepare  the  estimates  of  the  expenditure  and  revenue 
of  the  State  and  submit  them  to  the  State  Assembly  for  appro- 
bation. 

(2)  Appoint  military  and  civil  officials  to  post  and  dismiss 
them,  in  so  far  as  this  duty  is  not  confided  by  the  laws  to  other 
institutions. 

(3)  Conclude  treaties  with  other  states  on  behalf  of  the  Es- 
thonian  Republic,  and  lay  them  before  the  State  Assembly  for 
ratification. 

(4)  Declare  war  and  conclude  peace  on  the  basis  of  the  cor- 
responding decisions  of  the  State  Assembly. 

(5)  Proclaim  a  state  of  defence  as  well  in  single  parts  as  in 
the  whole  of  the  state,  which  they  submit  to  the  State  Assembly 
for  approbation. 

(6)  Present  the  drafts  of  bills  to  the  State  Assembly. 

(7)  Issue  regulations  and  orders  on  the  basis  of  the  laws. 

(8)  Decide  petitions  for  mercy. 

Art.  61.  The  State  Head  represents  the  Esthonian  Republic, 
leads  and  unifies  the  activities  of  the  Republican  Government, 
presides  over  the  meetings  of  the  Government,  and  is  authorized 
to  interpellate  any  particular  minister. 

Art.  62.  The  Republican  Government  appoints  a  member 
of  the  Government  to  deputize  for  the  State  Head. 

Art.  63.  The  meetings  of  the  Government  are  secret.  Only 
on  special  solemn  occasions  can  they  be  declared  public. 

Art.  64.  The  Republican  Government  must  possess  the  con- 
fidence of  the  State  Assembly.  The  Government  or  its  mem- 
bers have  to  resign  if  the  State  Assembly  expresses  a  direct  dec- 
laration of  absence  of  confidence  in  them. 

Art.  65.  The  State  Chancery  is  established  by  the  Repub- 
lican Government  and  superintended  by  the  State  Head.  The 
State  Chancery  is  directed  by  the  State  Secretary,  appointed 
by  the  Republican  Government. 

Art.  66.  All  acts  of  governing  issued  by  the  Government 
must  bear  the  signatures  of  the  State  Head,  the  respective  min- 
ister, and  the  state  secretary. 

Art.  67.  The  State  Head  and  ministers  can  be  brought  to 
trial  for  the  usual  delinquencies  on  the  basis  of  the  respective 
decision  of  the  State  Assembly  only.  The  examination  is  within 
the  jurisdiction  of  the  State  Court. 


ESTHONIA  463 

VI.  COURTS  OF  JUSTICE 

Art.  68.  The  Administration  of  justice  in  Esthonia  is  exer- 
cised in  the  courts  of  justice,  which  are  independent  in  their 
activities. 

Art.  69.  The  supreme  judicial  power  in  Esthonia  is  exer- 
cised by  the  State  Court  of  Justice,  formed  of  state  judges 
elected  by  the  State  Assembly. 

Art.  70.  These  judges,  who,  according  to  laws,  are  not  elected, 
are  appointed  by  the  State  Court. 

Art.  71.  Judges  can  be  dismissed  only  by  the  Court.  Judges 
can  be  replaced  against  their  will  only  in  cases  depending  on  the 
execution  of  the  law. 

Art.  72.  Judges  cannot  hold,  except  in  cases  foreseen  in  the 
law,  any  other  paid  engagement. 

Art.  73.  According  to  the  basis  and  ways  of  the  correspond- 
ing laws,  certain  categories  of  criminal  acts  come  under  the 
jurisdiction  of  the  assize  court.  The  previous  paragraph  is 
not  binding  on  jurymen. 

Art.  74.  Extraordinary  courts  are  allowed  within  the  limits 
of  the  corresponding  laws  only  in  time  of  war,  during  a  state  of 
defence,  and  on  men-of-war. 


VII.  SELF-GOVERNMENT 

Art.  75.  Through  the  self-government  bodies  the  state  power 
exercises  the  local  governing  so  far  as  there  is  no  special  institu- 
tion created  by  law. 

Art.  76.  The  representative  bodies  of  self-government  units 
are  elected  by  universal,  equal,  direct,  and  secret  suffrage  on 
the  principle  of  proportional  representation. 

Art.  77.  The  self-government  units  are  entitled,  for  the  ac- 
complishment of  their  object,  to  levy  rates  and  impose  duties 
within  the  limits  and  ways  fixed  in  the  law. 

VIII.  DEFENCE  OF  THE  STATE 

Art.  78.  All  Esthonian  citizens  are  obliged,  on  the  basis 
and  ways  laid  down  in  the  law,  to  take  part  in  the  defence  of 
the  Republic. 

Art.  79.  For  the  defence  of  the  Republic  defence  forces  are 
formed,  the  organization  of  which  will  be  fixed  by  special  law. 


464       NEW  CONSTITUTIONS  OF  EUROPE 

Art.  80.  On  the  order  of  mobilization,  as  also  on  the  begin- 
ning of  war,  the  command  of  the  defence  forces  of  the  Republic 
goes  from  the  Republican  Government  to  the  special  commander- 
in-chief,  the  limit  of  whose  power  is  fixed  in  a  special  law. 

Art.  81.  The  Republican  Government  is  entitled,  on  the 
basis  and  ways  foreseen  in  a  special  law,  to  pass  regulations 
and  instructions  concerning  the  defence  forces. 

Art.  82.  The  State  Assembly  decides  as  to  the  order  of 
mobilization  of  the  troops  of  the  Republic. 

The  Republican  Government  is  empowered  to  order  mobili- 
zation without  awaiting  the  decision  of  the  State  Assembly  if  a 
foreign  state  has  declared  war,  commenced  war  activities,  or 
ordered  mobilization  against  the  Republic. 

IX.  STATE  TAXES  AND  BUDGET 

Art.  83.  No  public  tax  or  duty  can  be  imposed  on  anybody 
unless  on  the  basis  of  the  law. 

Art.  84.  Out  of  the  expenses  of  the  state  no  pension,  grant, 
or  other  remuneration  can  be  allowed  unless  on  the  basis  of  the 
corresponding  law. 

Art.  85.  For  every  year  the  general  budget  of  income  and 
expenditure  will  be  composed  for  the  state.  Its  validity  can 
be  partly  prolonged  in  the  legislative  way  until  the  passing  of 
the  new  budget. 

X.  ALTERATION  OF  THE  CONSTITUTIONAL  LAW 

Art.  86.  The  constitution  is  the  unshaken  rule  for  the  ac- 
tions of  the  State  Assembly,  courts,  and  the  government  in- 
stitutions. 

Art.  87.  The  initiative  for  the  alteration  of  the  constitution 
belongs  to  the  people  in  the  way  of  the  initiative  of  the  people, 
as  also  to  the  State  Assembly  in  the  ordinary  way. 

Art.  88.  The  alteration  of  the  constitution,  whether  initiated 
in  the  way  of  the  people's  initiative  or  by  the  State  Assembly, 
is  decided  by  the  people  by  way  of  plebiscite. 

Art.  89.  The  project  of  the  alteration  of  the  constitution 
must  be  communicated  to  the  people  at  least  three  months 
before  the  day  of  the  plebiscite. 


CHAPTER  XIX 
FINLAND 

1.    HISTORICAL  NOTE 

UPON  her  reunion  with  Russia  in  1809  Finland  was  not 
debased  to  the  status  of  a  province  of  the  Empire.  Alex- 
ander I  entered  into  a  solemn  engagement  to  respect  the 
rights,  liberties,  and  privileges  of  the  country;  and  his 
guarantee  in  this  respect  was  repeated  by  successive  Czars 
down  to  Nicholas  II  in  1891.  In  theory,  therefore,  Fin- 
land was  quasi-independent.  The  country  was  governed 
in  so  far  as  applicable  under  the  Swedish  constitution  of 
1772  which  had  been  fundamentally  altered  by  the  Act 
of  Union  and  Security  of  1789.  The  Czar,  as  Grand  Duke 
of  Finland,  merely  took  the  place  of  the  King  of  Sweden. 

But  this  was  all  that  was  necessary  for  complete  Russian 
domination.  The  constitution  was  sufficiently  autocratic 
for  the  most  exacting  needs  of  the  Empire.  Provision  was 
made  for  a  diet  or  Landtag  of  four  estates — the  nobility, 
the  clergy,  the  bourgeoisie,  and  the  peasants,  each  estate 
sitting  as  a  separate  house.  This  diet  could  be  assembled 
and  dissolved  at  the  pleasure  of  the  Government.  In 
point  of  fact,  it  was  seldom  convoked  and  played  little  part 
in  the  governance  of  Finland  prior  to  1863.  In  1869  an 
organic  law  of  the  Diet  (amended  in  1879  and  1886)  was 
enacted  which  required  convocation  of  the  Diet  at  least 
every  five  years.  Even  after  1869,  however,  almost  com- 
plete political  control  of  the  country  was  in  the  hands  of  an 
appointed  Senate  which  had  been  established  in  1809. 

During  the  latter  half  of  the  nineteenth  century  the 
policy  of  the  Russian  bureaucracy  was  to  impose  upon 

465 


Theoretical 
autonomy 
after  1809 


Actual  Rus- 
sian domi- 
nation 


"One  law, 
one  church, 
one  tongue" 


Fundamen- 
tal laws  of 
1906,  1907 


466       NEW  CONSTITUTIONS  OF  EUROPE 

Finland  the  triple  yoke  of  political  autocracy,  religious 
orthodoxy,  and  linguistic  homogeneity — "one  law,  one 
church,  one  tongue."  But  the  spirit  of  the  liberty-loving 
Finns  was  not  easily  broken.  They  steadily  demanded 
more,  not  less,  self-government.  A  constitutional  crisis 
was  precipitated  when  in  1899  an  imperial  manifesto  re- 
duced the  Diet  to  the  status  of  a  provincial  assembly. 
This  was  followed  in  the  next  few  years  by  ordinances  es- 
tablishing control  over  the  press  and  public  assemblies, 
practically  incorporating  the  Finnish  troops  into  the 
Russian  army,  and  finally  in  1903  setting  up  a  dictator- 
ship. But  the  reverses  of  Russia  in  the  war  with  Japan 
in  1904-05,  as  well  as  the  revolutionary  unrest  that  was 
stirring  elsewhere  in  Russia,  played  into  the  hands  of  the 
Finnish  constitutionalists.  In  November,  1904,  following 
a  "national  strike,"  an  imperial  manifesto  "for  the  estab- 
lishment of  legal  order  in  the  country"  restored  Finland 
to  the  political  and  legal  status  quo  ante  1899.  More- 
over, this  manifesto  directed  the  Senate  of  Finland  to  pre- 
pare (1)  a  new  organic  law  of  the  Diet;  (2)  a  constitution 
recognizing  the  power  of  the  national  representative  assem- 
bly and  the  legality  of  acts  of  ministers,  and  guaranteeing 
to  citizens  freedom  of  speech  and  of  assembly;  and  (3)  a 
law  governing  freedom  of  the  press.  These  three  laws 
were  enacted  by  the  Diet  in  1906  and  1907. 

In  1908  strained  relations  with  the  Russian  Empire 
again  arose  over  an  order  of  the  Russian  ministry  which 
declared  that  Finnish  affairs  that  concerned  also  the  in- 
terests of  the  Empire  must  be  controlled  by  the  Russian 
Government.  From  this  time  down  to  the  opening  of  the 
war  in  1914  there  was  almost  constant  friction  between 
the  Finnish  constitutionalists  and  the  Russian  bureau- 
cracy. The  exigencies  of  the  war  finally  led  to  a  complete 
suspension  of  the  Finnish  constitution. 

In  the  spring  of  1917  the  Russian  revolution  broke. 
Among  the  important  reforms  effected  by  the  coalition 


FINLAND 


467 


Cabinet  headed  by  Prince  Lvov  was  the  restoration  of  the 
constitution  of  Finland  on  March  21,  1917.  A  secession- 
ist movement,  however,  immediately  developed  in  Fin- 
land. It  was  already  well  under  way  when  in  July  Keren- 
sky  ousted  Lvov  and  became  virtual  dictator  of  Russia. 
Needless  to  say  this  movement  was  not  checked  during 
the  months  of  military  and  political  chaos  that  followed. 
In  November  the  proletarian  revolution  in  Russia,  led  by 
Lenin  and  Trotsky,  overthrew  the  Kerensky  Government. 
In  December  the  Finnish  Government  declared  the  inde- 
pendence of  Finland.  Civil  war  ensued — war  between 
the  "Red  Guards"  or  radicals  and  the  "White  Guards" 
or  constitutionalists.  The  latter,  assisted  by  German 
forces,  ultimately  triumphed.  The  government  of  Fin- 
land under  Dictator  Svinhufvud  was  completely  domi- 
nated by  German  influence.  In  June,  1918,  the  government 
proposed  the  establishment  of  a  hereditary  monarchy;  and 
in  October  the  Diet,  from  which  all  Social  Democrats  had 
been  expelled,  elected  as  King  of  Finland  Prince  Frederick 
of  Hesse,  brother-in-law  of  the  German  Emperor. 

The  Prince  never  ascended  the  throne.  For  with  the 
military  collapse  of  the  Central  Powers  in  1918  the  grip 
of  Germany  upon  Finland  was  loosened.  In  December 
General  Mannerheim,  commander  of  the  White  Guard, 
became  Regent.  Some  weeks  later  Finland  was  declared 
to  be  a  Republic.  As  such  the  independence  of  the  country 
was  recognized  by  Great  Britain  and  the  United  States 
in  May,  1919,  as  well  as  by  the  Peace  Conference  at  Ver- 
sailles. In  July,  1919,  anew  constitution,  drafted  by  the 
existing  diet,  was  promulgated.  It  was  not,  however,  a 
complete  constitution.  It  was  rather  in  the  nature  of  an 
amendment  of,  and  an  elaborate  supplement  to,  the  organic 
law  of  1906,  most  of  the  provisions  of  which  are  still  in  force.1 


'The  text  of  the  constitution  which  follows  has  been  translated  from  the  official 
French  version  issued  at  Helsingfors  in  1920.  It  has  been  compared  with  an 
English  text  furnished  by  the  Finnish  legation  in  Washington. 


Secession 
and  inde- 
pendence, 
1917 


German 
domination 


Constitution 
of  1919 


468       NEW  CONSTITUTIONS  OF  EUROPE 

2.  THE  CONSTITUTION  OF  FINLAND 
Given  at  Helsingfors,  July  17,  1919 

Whereas  Finland  has  become  an  independent  and  sovereign 
state,  it  has  been  deemed  necessary  to  develop  and  consolidate 
its  constitution  by  new  statutes  having  the  character  of  funda- 
mental laws  which,  at  the  same  time  that  they  confirm  the  neces- 
sary authority  to  the  executive  power,  enlarge  also  the  powers 
of  national  representation  and  guarantee  the  constitutional 
rights  and  liberties  of  citizens.  Therefore  the  present  act,  in 
conformity  with  the  decision  of  the  diet  taken  in  accordance 
with  the  procedure  prescribed  by  Article  60  of  the  organic  law 
of  the  diet  of  July  20,  1906,  gives  sanction  to  the  constitution 
of  Finland,  the  text  of  which  follows. 

TITLE   I 

GENERAL  PROVISIONS 

'  Article  1.  Finland  is  a  sovereign  Republic,  its  constitution 
being  established  by  this  law  relating  to  the  form  of  government 
and  by  the  other  fundamental  laws. 

Art.  2.  Sovereign  power  in  Finland  belongs  to  the  people, 
represented  by  their  delegates  assembled  in  a  Chamber  of  Rep- 
resentatives (in  Finnish,  Eduskunta,  in  Swedish,  Riksdag}. 

Supreme  executive  power  is  vested  in  the  President  of  the 
Republic.  In  addition  to  the  President  there  shall  be  for  the 
general  government  of  the  state  a  Council  of  State  (Council 
of  Ministers),  consisting  of  a  Minister  of  State  (President  of 
the  Council)  and  of  such  number  of  ministers  as  may  be  de- 
sired. 

The  judicial  power  shall  be  exercised  by  independent  tri- 
bunals, and,  in  final  instance,  by  the  Supreme  Court  and  the 
Supreme  Administrative  Court. 

Art.  3.  The  territory  of  the  Finnish  Republic  shall  be  in- 
divisible. Its  boundaries  may  be  modified  only  with  the  con- 
sent of  the  Chamber  of  Representatives. 

Art.  4.  Finnish  nationality  appertains  as  a  matter  of  right 
to  every  person  born  of  Finnish  parents  and  to  a  woman  of 
foreign  nationality  who  has  married  a  Finnish  citizen. 

A  citizen  of  another  country  may  be  admitted  to  Finnish 


FINLAND  469 

citizenship  in  accordance  with  the  conditions  and  procedure 
specifically  regulated  by  law. 


TITLE   II 

GENERAL   RIGHTS    AND    CONSTITUTIONAL   PROTECTION 
OF  FINNISH  CITIZENS 

Art.  5.     Finnish  citizens  shall  be  equal  before  the  law. 

Art.  6.  Every  Finnish  citizen  shall  be  protected  by  law  in 
his  health,  his  honor,  his  personal  liberty,  and  his  property. 

The  labor  power  of  citizens  shall  be  under  the  special  protec- 
tion of  the  state. 

Expropriation  for  public  utility  purposes  with  full  compensa- 
tion shall  be  regulated  by  law. 

Art.  7.  Every  Finnish  citizen  shall  have  the  right  of  sojourn 
in  his  country,  of  freely  choosing  his  place  of  domicile,  and  of 
travelling  from  one  place  to  another,  unless  otherwise  provided 
by  law. 

The  right  of  Finnish  citizens  to  leave  the  country  shall  be 
limited  by  such  special  regulations  as  may  be  applicable. 

Art.  8.  Every  Finnish  citizen  shall  have  the  right  to  wor- 
ship in  public  and  in  private  upon  condition  that  he  does  not 
violate  the  law  or  good  morals;  he  shall  be  at  liberty  also,  in 
conformity  with  the  special  regulations  governing  the  matter, 
to  leave  the  religious  communion  to  which  he  belongs  and  to 
join  another  such  communion. 

Art.  9.  Profession  of  religion  or  the  fact  of  belonging  to 
no  religion  shall  have  no  influence  upon  the  rights  and  duties 
of  Finnish  citizens.  In  respect  to  public  offices,  legal  restric- 
tions which  are  not  in  conflict  herewith  shall  remain  in  force 
until  otherwise  provided  by  law. 

Art.  10.  Finnish  citizens  shall  enjoy  freedom  of  speech  and 
the  right  of  printing  and  publishing  written  or  pictorial  repre- 
sentations without  any  previous  restraint  being  imposed.  They 
shall  also  have  the  right  of  assembly  without  previous  authori- 
zation, for  the  discussion  of  public  affairs  and  for  all  other  legiti- 
mate purposes,  and  the  right  of  creating  associations  for  pur- 
poses not  contrary  to  the  law  or  good  morals. 

The  rules  governing  the  exercise  of  these  rights  shall  be  estab- 
lished by  law. 

Art.  11.     The  domicile  of  Finnish  citizens  shall  be  inviolable. 


470       NEW  CONSTITUTIONS  OF  EUROPE 

The  conditions  under  which  domiciliary  searches  may  be 
ordered  and  carried  out  shall  be  determined  by  law. 

Art.  12.  The  secrecy  of  postal,  telegraphic,  and  telephonic 
communication  shall  be  inviolable. 

Art.  13.  No  Finnish  citizen  shall  be  tried  by  any  other  tri- 
bunal than  that  which  has  jurisdiction  over  him  in  accord- 
ance with  the  law. 

Art.  14.  Finnish  and  Swedish  shall  be  the  national  languages 
of  the  Republic. 

The  right  of  Finnish  citizens  to  use  their  mother  tongue, 
whether  Finnish  or  Swedish,  before  the  courts  and  the  adminis- 
trative authorities,  and  to  receive  papers  and  decisions  in  such 
language,  shall  be  guaranteed  by  law;  care  shall  be  taken  that 
the  rights  of  the  Finnish  population  and  the  rights  of  the  Swed- 
ish population  of  the  country  shall  be  protected  in  accordance 
with  identical  principles. 

The  state  shall  provide  for  the  intellectual  and  economic 
needs  of  the  Finnish  and  Swedish  populations  in  accordance 
with  identical  principles. 

Art.  15.  No  title  of  nobility  nor  other  hereditary  dignity 
shall  be  conferred  in  the  Republic. 

Art.  16.  These  provisions  concerning  the  general  rights  of 
Finnish  citizens  shall  constitute  no  obstacle  to  the  establish- 
ment by  law  of  restrictions  which  are  necessary  in  time  of  war 
or  insurrection,  and  in  respect  to  persons  in  the  military  or  naval 
service,  as  well  as  in  other  cases. 

TITLE  III 
LEGISLATION 

Art.  17.  The  organization  and  powers  of  the  Chamber  of 
Representatives  are  regulated  by  the  organic  law  of  the  Cham- 
ber of  Representatives. 

Art.  18.  The  right  to  propose  a  new  law  or  the  modification, 
construction,  or  repeal  of  a  law  in  force  shall  be  vested  in  the 
President  as  well  as  in  the  Chamber  of  Representatives. 

The  President  of  the  Republic  shall  exercise  his  right  of  in- 
itiating laws  by  submitting  proposals  of  law  to  the  Chamber. 
Proposals  of  law  shall  be  elaborated  by  the  Council  of  State. 
The  advice  of  the  Supreme  Court  or  of  the  Supreme  Administra- 
tive Court  or  of  both  of  these  courts  may  be  requested  upon 
the  subject  of  the  proposals  thus  submitted.  The  exercise  of 


FINLAND  471 

the  right  of  initiating  laws  by  the  Chamber  itself  is  determined 
by  the  organic  law  of  the  Chamber  of  Representatives. 

Art.  19.  Laws  adopted  by  the  Chamber  shall  be  presented 
to  the  President  of  the  Republic  for  his  approval.  The  Presi- 
dent may  request  the  advice  of  the  Supreme  Court  or  of  the 
Supreme  Administrative  Court  or  of  both  of  these  courts  in 
respect  to  the  subject  of  such  a  law,  according  to  the  nature 
of  the  question  involved. 

The  law  must  be  approved  in  the  text  adopted  by  the  Cham- 
ber. If  a  law  is  not  approved  by  the  President,  it  shall  never- 
theless be  enforced  without  his  approval  if  the  Chamber,  after 
a  new  election,  readopts  it  without  alteration  by  an  absolute 
majority.  Otherwise  the  law  shall  be  regarded  as  having  lapsed. 

If  the  President,  within  three  months  after  a  law  has  been 
presented  for  his  approval,  has  not  approved  the  same  it  shall 
be  regarded  as  having  been  disapproved. 

Art.  20.  The  preamble  of  every  law  shall  indicate  that  it 
has  been  enacted  in  conformity  with  the  decision  of  the  Cham- 
ber, and,  if  the  law  has  been  enacted  in  accordance  with  the  pro- 
cedure required  for  the  enactment  of  fundamental  laws,  the  same 
shall  be  indicated. 

Every  law,  whether  it  be  approved  or  whether  it  be  in  force 
without  the  approval  of  the  President,  shall  be  signed  by  the 
President  and  countersigned  by  the  proper  Minister,  after  which 
it  shall  be  published  in  the  Bulletin  of  Laws  of  Finland. 

Art.  21.  The  right  of  the  President  to  promulgate  ordinances 
is  determined  by  Article  28. 

Art.  22.  Laws  and  ordinances,  as  well  as  proposals  of  law 
submitted  by  the  Government  to  the  Chamber  and  the  re- 
sponses, statements,  and  other  addresses  by  the  Chamber  to 
the  Government,  shall  be  written  in  the  Finnish  and  the  Swedish 
languages. 

TITLE  rv 
GOVERNMENT  AND  ADMINISTRATION 

Art.  23.  The  President  of  the  Republic  shall  be  elected  by 
the  people  of  Finland  from  among  the  citizens  of  Finland  for 
a  term  of  six  years. 

The  election  of  the  President  shall  be  made  by  three  hundred 
presidential  electors.  The  regulations  in  force  for  elections  to 
the  Chamber  of  Representatives  shall  apply  in  respect  to  the 


472       NEW  CONSTITUTIONS  OF  EUROPE 

right  of  suffrage  and  the  qualifications  of  voters  in  these  elections 
as  well  as,  in  so  far  as  these  regulations  are  applicable,  to  the 
mode  of  election,  the  procedure  of  voting,  and  the  designation 
of  alternates. 

The  election  of  electors  shall  take  place  on  the  fifteenth  and 
sixteenth  of  January;  and  on  the  fifteenth  of  February  following 
the  electors  shall  assemble  under  the  presidency  of  the  President 
of  the  Council  in  order  to  proceed  to  the  election  of  the  Presi- 
dent. The  vote  shall  be  by  secret  ballot.  If  a  candidate  ob- 
tains more  than  half  of  the  votes  cast,  he  shall  be  declared 
elected;  if  this  does  not  result,  a  new  ballot  shall  immediately 
be  taken,  and  if  no  candidate  obtains  an  absolute  majority 
this  time,  another  ballot  shall  be  taken  between  the  two  candi- 
dates who  obtain  the  highest  number  of  votes  on  the  second 
count.  In  case  of  a  tie  vote  the  decision  shall  be  by  lot. 

If  a  member  of  the  Chamber  is  elected  President  his  mandate 
as  deputy  shall  cease.  A  public  functionary  who  is  elected 
President  shall  be  regarded  as  having  vacated  his  office  by 
resignation. 

If  a  day  fixed  in  Paragraph  3  of  this  Article  or  elsewhere 
in  this  constitution  falls  upon  a  holiday,  the  next  following  work 
day  shall  be  substituted  for  it. 

Art.  24.  The  President  shall  enter  upon  his  duties  on  the 
first  day  of  the  month  of  March  following  his  election,  and  in 
the  presence  of  the  Chamber  of  Deputies  shall  make  at  this 
time  the  following  solemn  declaration : 

"I,  N.  N.,  elected  by  the  people  of  Finland  President  of  the 
Finnish  Republic  hereby  affirm  that  in  the  exercise  of  my  presi- 
dential functions  I  will  obey  and  support  with  loyalty  and  fidel- 
ity the  constitution  and  the  laws  of  the  Republic  and  that  I 
will  labor  with  all  my  power  for  the  welfare  of  the  Finnish 
people." 

Art.  25.  In  case  of  impeachment  the  functions  of  the  Pres- 
ident shall  be  exercised  by  the  President  of  the  Council.  If 
the  impeachment  results  in  conviction,  a  new  President  shall 
be  elected  as  soon  as  possible,  who  shall  enter  upon  his  duties 
immediately  after  the  election. 

Art.  26.  For  the  exercise  of  his  functions  the  President  shall 
receive  an  annual  salary,  the  amount  of  which  shall  be  fixed 
by  law,  which  amount  shall  be  neither  increased  nor  diminished 
during  his  term  of  office. 

Art.  27.    The  President  shall  have  power  to  convoke  the 


FINLAND  473 

Chamber  of  Representatives  in  extraordinary  session,  to  issue 
orders  for  the  holding  of  parliamentary  elections,  to  open  and 
close  the  Chamber,  as  well  as  to  decide  upon  new  elections  and 
to  dissolve  the  Chamber. 

Art.  28.  In  cases  not  otherwise  provided  for  in  this  consti- 
tution, or  in  case  the  right  has  not  been  vested  in  the  Council 
of  State,  the  President  shall  have  the  right  to  promulgate  or- 
dinances upon  matters  which  have  heretofore  been  regulated  by 
administrative  rules,  as  well  as  ordinances  regulating  details 
in  the  application  of  the  laws,  the  administration  of  the  State 
domains,  as  well  as  the  organization  and  operation  of  adminis- 
trative services  and  public  institutions.  Ordinances  shall  not 
contain  any  regulation  implying  a  modification  of  the  law. 

Ordinances  shall  be  given  and  published  as  provided  in 
Article  20,  Paragraph  2,  in  respect  to  the  subject  of  laws. 

Art.  29.  In  particular  cases  the  President  may,  after  having 
secured  the  advice  of  the  Supreme  Court,  exercise  the  pardoning 
power  by  remitting  or  reducing  a  penalty.  In  respect,  however, 
to  the  pardon  of  a  member  of  the  Council  or  of  the  Chancellor 
of  Justice,  special  stipulations  must  be  complied  with.  A  gen- 
eral amnesty  may  be  granted  only  by  a  special  law. 

The  President  may  also  grant  exemption  from  the  require- 
ments of  the  law  in  case  the  law  permits  the  granting  of  such 
exemption. 

Art.  30.  The  President  shall  be  Commander-in-Chief  of  the 
armed  forces  of  Finland;  he  shall  have  power  hi  time  of  war  to 
transfer  his  command  to  another. 

Art.  31.  The  President  may  grant  Finnish  nationality  to  a 
citizen  of  another  country  and  may  release  a  Finn  from  his 
Finnish  nationality. 

Art.  32.  The  President  shall  supervise  the  administration 
of  the  state,  and  for  this  purpose  he  may  demand  explanations 
from  the  chiefs  or  directors  of  administrative  services  and  pub- 
lic institutions,  and  he  may  cause  inspections  to  be  made. 

Art.  33.  The  relations  of  Finland  with  foreign  powers  shall 
be  conducted  by  the  President.  Every  treaty  with  a  foreign 
power  must  be  ratified  by  the  Chamber  of  Representatives  if  it 
contains  stipulations  falling  within  the  domain  of  legislation  or 
if  the  constitution  requires  such  ratification  for  other  reasons. 
Decisions  in  respect  to  peace  and  war  shall  be  taken  by  the 
President  with  the  consent  of  the  Chamber. 

All  communications  to  foreign  powers  or  to  the  diplomatic 


474       NEW  CONSTITUTIONS  OP  EUROPE 

representatives  of  Finland  abroad  must  be  made  through  the 
minister  having  jurisdiction  over  foreign  affairs. 

Art.  34.  The  decision  of  the  President  shall  be  made  in  the 
Council  of  State  (Council  of  Ministers)  upon  the  report  of  the 
minister  to  whose  department  the  question  involved  belongs. 

The  decisions  of  the  President  in  order  to  be  valid  must  be 
signed  by  the  President  and  countersigned  by  the  minister  who 
is  in  charge  of  the  matter.  This  rule,  however,  shall  not  apply 
to  the  matters  referred  to  in  Articles  32  and  47. 

If  the  decision  of  the  President  concerns  the  entire  Council 
it  shall  be  countersigned  by  the  reporter  of  the  Council.  In 
respect  to  military  questions  touching  the  command,  military 
nominations,  and  the  counter  signature  of  decisions  of  the  Presi- 
dent in  these  matters,  special  regulations  shall  be  laid  down. 

The  Minister  who  countersigns  a  decision  of  the  President 
shall  be  responsible  for  the  correctness  of  the  report  thereof. 

Art.  35.  If  a  Minister  regards  a  decision  of  the  President  as 
contrary  to  law,  he  shall  inform  the  Council  of  State  which  shall 
thereupon  proceed  as  is  set  forth  in  Article  45.  If  the  decision 
is  contrary  to  a  fundamental  law  the  minister  must  refuse  his 
counter  signature. 

Art.  36.  The  members  of  the  Council  of  State,  who  must  en- 
joy the  confidence  of  the  Chamber  of  Representatives,  shall  be 
chosen  by  the  President  from  among  the  citizens  of  Finland  who 
are  native  born  and  who  are  known  for  their  honesty  and  their 
competence. 

The  minister  under  whose  jurisdiction  affairs  relating  to  the 
administration  of  justice  are  placed,  and  at  least  one  other 
minister  must  be  profoundly  learned  in  the  law. 

Art.  37.  The  Council  of  State  must  have  a  Chancellor  of 
Justice  who  must  be  profoundly  learned  in  the  law.  The  Chan- 
cellor of  Justice  shall  be  assisted  by  a  Deputy  Chancellor  of 
Justice,  who  in  case  of  need  shall  take  the  place  of  the  Chancellor. 

Art.  38.  The  Council  of  State  (Council  of  Ministers)  shall 
consist  of  as  many  ministers  as  are  necessary  for  the  different 
branches  of  administration.  Each  department  shall  be  directed 
by  a  minister. 

The  number  of  ministers  and  the  general  extent  of  their  juris- 
diction shall  be  fixed  by  law,  but  the  detailed  rules  governing 
the  apportionment  of  business  among  the  ministers  and  the  or- 
ganization of  the  Council  in  all  other  respects  shall  be  decreed 
by  ordinance. 


FINLAND  475 

Art.  39.  The  Prime  Minister  shall  be  President  of  the  Coun- 
cil; in  case  of  impeachment  he  shall  be  succeeded  by  the  incum- 
bent minister  who  is  first  in  point  of  precedence.  When  the 
President  of  the  Republic  is  present  he  shall  preside  over  the 
Council. 

Art.  40.  The  business  of  the  Council  of  State  shall  be  con- 
sidered in  full  session,  except  in  cases  in  which  the  decision  of 
certain  questions  has  been,  by  ordinance,  committed  to  one  of 
the  ministers  in  his  capacity  as  head  of  a  department. 

A  quorum  of  the  Council  shall  consist  of  five  members. 

Art.  41.  The  Council  shall  have  power  to  execute  the  deci- 
sions of  the  President  and  to  decide  matters  which  it  must  de- 
cide under  the  terms  of  the  law,  as  well  as  other  questions  of 
government  and  administration  which  have  not  been  reserved 
to  the  President  in  the  present  constitution  or  in  any  other  law 
or  ordinance,  and  which  have  not  been  committed  to  a  minister 
in  his  capacity  as  head  of  a  department  or  to  an  inferior  author- 
ity. 

Special  regulations  shall  indicate  the  extent  to  which  matters 
relating  to  the  administration  of  justice,  the  University  of 
Helsingfors,  and  the  military  organization  are  withdrawn  from 
the  competence  of  the  Council. 

Art.  42.  If  the  Council  of  State  is  in  doubt  as  to  its  com- 
petence definitively  to  decide  any  matter,  the  President  of  the 
Republic  shall  settle  this  question  of  competence. 

Art.  43.  The  members  of  the  Council  of  State  shall  be  re- 
sponsible to  the  Chamber  of  Representatives  for  their  admin- 
istrative acts. 

Every  member  of  the  Council  who  has  participated  in  the 
settlement  of  any  matter  by  the  Council  shall  be  responsible 
for  the  decision  reached,  unless  he  shall  have  expressed  a  differ- 
ent opinion  recorded  in  the  minutes. 

Art.  44.  The  questions  considered  by  the  Council  of  State 
must  have  been  prepared  by  the  department  having  jurisdiction. 

Each  minister  shall  supervise  the  administration  within  his 
sphere  of  powers  and  shall  take  measures  to  enforce  the  laws, 
ordinances,  and  decisions  of  the  Council. 

Art.  45.  If  it  happens  that  a  decision  of  the  President  which 
is  presented  to  the  Council  for  execution  is  found  to  be  con- 
trary to  the  law,  the  Council,  after  taking  the  advice  of  the 
Chancellor  of  Justice,  must  address  to  the  President  a  request 
that  he  withdraw  or  modify  his  decision,  and,  if  the  President 


476       NEW  CONSTITUTIONS  OF  EUROPE 

nevertheless  maintains  his  ground,  the  Council  must  declare 
that  the  decision  can  not  be  enforced. 

Art.  46.  The  Chancellor  of  Justice  must  see  that  the  author- 
ities and  functionaries  comply  with  the  law  and  perform  their 
duties  to  the  end  that  no  person  shall  suffer  injury  to  his  rights. 

It  shall  be  the  duty  of  the  Chancellor  of  Justice  to  represent 
the  public  authorities  in  the  Supreme  Court  and  in  the  Supreme 
Administrative  Court,  and  to  look  after  the  interests  of  the 
state  in  these  courts,  as  well  as  to  assist  or  cause  to  be  assisted 
prosecutions  in  other  tribunals  when  he  shall  deem  it  necessary. 
In  his  capacity  as  supreme  public  prosecutor,  the  Chancellor 
of  Justice  must  also  exercise  supervision  over  those  who  hold 
public  office,  and  they  must  obey  his  decisions. 

The  Chancellor  of  Justice  shall  have  a  seat  in  the  sessions 
of  the  Council  of  State,  as  well  as  in  the  sessions  of  all  adminis- 
trative tribunals  and  departments,  and  shall  receive  reports  in 
writing  from  the  ministers,  tribunals,  and  other  authorities. 

Art.  47.  If  the  Council  of  State  or  one  of  its  members  acts 
contrary  to  the  law  in  the  exercise  of  his  functions,  it  is  incum- 
bent upon  the  Chancellor  of  Justice  to  make  a  declaration  upon 
the  subject,  and  at  the  same  time  to  indicate  in  what  respect 
the  act  is  illegal.  If  the  member  is  not  restrained  by  this  dec- 
laration, the  Chancellor  of  Justice  shall  cause  his  opinion  to 
be  inscribed  upon  the  minutes  of  the  Council  and  shall  also  have 
the  right  to  advise  the  President  in  respect  to  it.  If  the  il- 
legality is  of  a  nature  to  involve  a  prosecution  against  the  mem- 
ber in  interest  before  the  High  Court  mentioned  in  Article  59, 
and  if  the  President  directs  the  arraignment,  the  latter  shall 
be  supported  by  the  Chancellor  of  Justice.  If  the  President 
finds  that  there  is  no  ground  for  the  arraignment,  the  Chancellor 
of  Justice  shall  be  free  to  pursue  the  case  before  the  Chamber  of 
Representatives.  If  the  President  decides  upon  an  arraignment 
of  the  Chancellor  of  Justice,  the  indictment  shall  be  prosecuted 
by  the  person  designated  by  the  President  for  that  purpose. 

If  the  President  in  the  exercise  of  his  functions  is  about  to 
commit  illegal  acts,  the  Chancellor  of  Justice  must  make  a 
declaration  upon  the  subject  as  provided  above.  If  the  Chan- 
cellor of  Justice  or  the  Council  of  State  finds  that  the  President 
is  guilty  of  high  treason  or  of  treason,  the  Chancellor  or  the 
Council  shall  report  this  fact  to  the  Chamber  of  Representa- 
tives. And  in  case  the  Chamber,  by  a  three-fourths  majority 
vote,  decides  to  arraign  the  President,  the  Chancellor  must  prose- 


FINLAND  477 

cute  him  before  the  Supreme  Court,  and  in  the  meantime  the 
President  shall  abstain  from  the  exercise  of  his  functions.  Ex- 
cept in  the  cases  above  provided  the  President  shall  not  be  ar- 
raigned for  his  administrative  acts. 

Art.  48.  The  Chancellor  of  Justice  must  make  each  year  to 
the  President  as  well  as  to  the  Chamber  of  Representatives  a 
report  upon  the  measures  that  he  has  taken  and  upon  his  accom- 
plishments in  respect  to  the  enforcement  of  the  laws. 

The  Chancellor  of  Justice  upon  request  must  give  the  Cham- 
ber of  Representatives  and  the  Council  of  State  information 
and  advice. 

Art.  49.  At  each  regular  session  the  Chamber  of  Representa- 
tives shall  elect  in  accordance  with  the  procedure  provided  for 
the  election  of  its  own  President,  a  person  distinguished  in  the 
law  who  shall  be  the  Solicitor  of  the  Chamber.  The  Solicitor, 
in  conformity  with  the  instructions  given  him  by  the  Chamber, 
shall  supervise  the  enforcement  of  the  laws  in  the  pro- 
ceedings of  courts  and  other  authorities.  There  shall  be 
elected  also,  in  accordance  with  the  same  procedure,  a  Deputy 
Solicitor  who  shall  act  for  the  Solicitor  in  case  of  the  latter's 
disability. 

The  Solicitor  shall  have  the  same  right  as  the  Chancellor  of 
Justice  to  be  present  at  the  sessions  of  the  Council  of  State  and 
the  sessions  of  administrative  tribunals  and  departments,  the 
right  to  receive  written  reports  from  the  Council  of  State,  min- 
isters, tribunals,  and  other  authorities,  and,  under  the  respon- 
sibility imposed  by  law  upon  public  authorities,  the  right  to 
prosecute  or  cause  to  be  prosecuted  complaints  for  malfeasance 
or  nonfeasance  in  office. 

The  Solicitor  must  make  annually  to  the  Chamber  of  Rep- 
resentatives a  report  of  the  manner  in  which  he  has  performed 
his  functions,  of  the  state  of  the  administration  of  the  law,  and 
of  the  defects  which  he  has  noticed  in  legislation. 

Art.  50.  From  the  point  of  view  of  general  administration, 
Finland  shall  remain  divided  into  departments,  judicial  districts, 
and  parishes. 

Every  modification  in  respect  to  the  number  of  provinces 
shall  be  made  by  law;  the  Council  of  State  shall  decide  all  other 
changes  in  reference  to  administrative  divisions  not  otherwise 
provided  by  law. 

In  case  of  new  delimitations  of  districts  the  new  districts, 
wherever  the  circumstances  permit,  must  be  so  formed  as  to 


478       NEW  CONSTITUTIONS  OF  EUROPE 

include  populations  speaking  only  one  language,  Finnish  or 
Swedish,  or  so  that  the  minority  speaking  the  other  language 
shall  be  as  small  as  possible. 

Art.  51.  The  provinces  shall  be  administered  by  governors. 
The  administration  of  the  communes  shall  be  established  upon 
the  principle  of  local  autonomy  in  accordance  with  the  regula- 
tions prescribed  by  special  laws.  The  manner  and  extent  of 
local  autonomy  to  be  applied  in  districts  wider  than  communes 
shall  be  regulated  by  law;  the  regulations  contained  in  Article 
50,  Paragraph  3,  shall  be  followed  in  fixing  the  boundaries  of 
these  districts. 

Art.  52.  Administrative  services  now  existing  or  hereafter 
created  for  different  branches  of  the  administration  of  the  state 
shall  be  governed  by  special  regulations. 

TITLE  v 
THE  JUDICIARY 

Art.  53.  The  Supreme  Court  is  the  court  of  final  resort  in 
suits  at  law;  moreover  it  shall  supervise  judges  and  executive 
authorities  in  their  administration  of  justice. 

Art.  54.  The  Supreme  Court  shall  be  composed  of  a  Chief 
Justice  and  of  the  necessary  number  of  associate  justices. 

Matters  pertaining  to  the  judicial  administration  which,  by 
reason  of  special  regulations,  fall  within  the  jurisdiction  of  the 
Supreme  Court  shall  be  prepared  by  the  department  to  which 
questions  concerning  the  administration  of  justice  are  assigned. 
The  head  of  the  department  shall  participate  in  deliberations 
of  the  Supreme  Court  upon  such  matters. 

In  the  Supreme  Court  questions  may  be  examined  and  de- 
cided by  five  members,  provided  however  that  for  the  examina- 
tion and  decision  of  certain  questions  a  larger  or  smaller  number 
of  members  may  be  provided  by  special  law. 

Art.  55.  Tribunals  of  first  instance  and  of  appeal  shall  be 
established  by  law. 

Art.  56.  The  court  of  last  resort  in  suits  involving  adminis- 
trative law  shall,  except  as  otherwise  specially  provided,  be  the 
Supreme  Administrative  Court,  which  shall  also  supervise  in- 
ferior authorities  in  their  administration  of  justice  in  the  field 
of  administrative  law. 

Art.  57.  The  Supreme  Administrative  Court  shall  be  com- 
posed of  the  President  and  of  the  necessary  number  of  associate 


FINLAND  479 

administrative  justices.  The  provisions  of  Article  54,  Para- 
graph 3,  shall  apply  also  to  this  court. 

Art.  58.  The  Supreme  Court  and  the  Supreme  Administra- 
tive Court  shall  have  the  right,  when  they  think  that  a  modifi- 
cation or  interpretation  of  a  law  or  ordinance  is  necessary,  to 
address  to  the  President  a  note  requesting  that  such  legislation 
be  enacted. 

Art.  59.  In  case  of  the  arraignment  of  a  minister,  of  a  mem- 
ber of  the  Supreme  Court  or  of  the  Supreme  Administrative 
Court,  or  of  the  Chancellor  of  Justice,  for  an  illegal  act  com- 
mitted in  the  exercise  of  their  functions,  the  case  shall  be  tried 
by  a  special  court  called  the  High  Court  which  shall  be  estab- 
lished by  special  regulations  having  the  character  of  a  funda- 
mental law. 

If  the  Chamber  of  Representatives  makes  the  arraignment, 
it  shall  be  prosecuted  by  the  Solicitor  of  the  Chamber. 

Art.  60.  Special  tribunals  other  than  that  mentioned  in 
Article  59  shall  be  provided  for  by  law. 

No  extraordinary  tribunal  shall  be  established. 

TITLE   VI 

PUBLIC  FINANCE 

Art.  61.  Imposts  including  customs  duties  shall  be  prescribed 
by  law  for  a  limited  or  indeterminate  period.  In  the  same  way 
the  abolition  or  modification  of  a  previously  established  im- 
post and  of  compulsory  public  services  shall  be  regulated  by  law. 

An  impost  established  for  a  limited  period  shall  not  be  col- 
lected beyond  such  period  except  in  the  case  provided  in  Article 
69,  Paragraph  1. 

Art.  62.  The  general  principles  in  respect  to  fees  for  acts 
of  public  authorities,  and  for  documents,  as  well  as  in  respect 
to  taxes  to  pay  for  the  use  of  the  post,  the  railroads,  the  canals, 
the  hospitals,  the  schools,  and  other  public  establishments  be- 
longing to  the  state,  shall  be  regulated  by  law. 

Art.  63.  Revenue  producing  properties  and  enterprises  be- 
longing to  the  state  shall  be  exploited  and  utilized  according 
to  general  principles  established  by  law. 

Art.  64.  The  consent  of  the  Chamber  of  Representatives 
shall  be  necessary  for  the  issue  of  a  loan. 

Art.  65.  The  principles  governing  new  budgets  for  adminis- 
trative services  and  public  institutions,  as  well  as  the  modifica- 


480       NEW  CONSTITUTIONS  OF  EUROPE 

tion  and  abrogation  of  principles  previously  established,  shall 
be  regulated  by  law,  as  shall  also  the  matter  of  pension  rights. 
New  employments  and  services  shall  be  created  only  within 
limits  of  the  annual  budget. 

New  extraordinary  pensions  or  subventions  shall  be  granted 
only  upon  credits  voted  for  this  purpose  by  the  Chamber  of 
Representatives. 

Art.  66.  The  annual  budget  proposal,  in  which  must  be  in- 
cluded the  receipts  and  expenses  for  the  budgetary  year,  shall 
be  adopted  by  the  Chamber  of  Representatives  and  promul- 
gated in  the  same  manner  as  is  required  for  the  promulgation 
of  laws.  Special  regulations  shall  determine  whether  a  fund 
which  does  not  aim  to  meet  the  annual  expenses  of  the  state 
shall  be  excluded  from  the  budget  proposal. 

Art.  67.  In  the  budget  proposal  of  any  fixed  year,  no  impost 
or  other  revenue  may  be  passed  over,  which,  according  to  the 
laws  or  ordinances  in  force  for  the  year  in  question,  must  be 
collected. 

Art.  68.  Interests  and  annuities  for  the  amortization  of  debts 
and  other  funds  designated  for  some  state  obligation,  as  well 
as  expenses  which  must  be  paid  in  accordance  with  regulations 
in  effect  during  the  budgetary  year,  must  be  carried,  without 
deductions,  as  part  of  the  budget  proposal.  This  proposal 
must  also  include  amounts  covering  expenses  based  upon  laws 
or  ordinances  but  not  carried  in  the  budget  proposal  as  special 
items,  as  well  as  necessary  credits  placed  at  the  disposal  of  the 
Government  for  unexpected  needs. 

Other  expenses  included  within  the  budget  proposal  shall 
be  subject  to  examination  and  decision  by  the  Chamber  of 
Representatives  for  a  single  budgetary  year  at  a  time. 

Credits  voted  by  the  Chamber  of  Representatives  upon  par- 
liamentary initiative  shall  be  conditionally  inserted  in  the  bud- 
get proposal. 

The  budget  proposal  must  show  resources  sufficient  to  cover 
expenses. 

Art.  69.  If  the  budget  is  not  adopted  by  the  Chamber  of 
Representatives  before  the  beginning  of  the  year,  although  the 
proposal  has  been  submitted  by  the  Government  at  least  two 
months  prior  to  the  expiration  of  the  Parliamentary  session,  the 
expenditures  mentioned  in  Article  68,  Paragraph  1,  shall  be 
paid,  and  the  revenues  necessary  for  this  purpose  shall  continue 
to  be  collected  provisionally. 


FINLAND  481 

If  modifications  in  the  approved  budget  proposal  appear 
to  be  absolutely  necessary,  a  supplementary  budget  proposal 
shall  be  presented  to  the  Chamber  of  Representatives. 

Art.  70.  The  credits  carried  in  the  budget  proposal  shall 
not  be  exceeded,  nor  shall  they  be  carried  over  from  one  financial 
year  to  another,  unless  provisions  for  this  are  made  in  the  budget 
proposal,  nor  shall  a  credit  be  transferred  from  one  part  of  the 
budget  proposal  approved  by  the  Chamber  of  Representatives  to 
another  part  of  the  budget. 

Independently  of  the  budget  every  person  shall  have  the 
right  to  demand  from  the  state  treasury  what  is  legally  due  him. 

Art.  71.  For  the  examination  of  treasury  accounts  there 
shall  be  a  bureau  of  audit  of  accounts,  which  must  satisfy  itself 
that  the  figures  carried  in  the  accounts  are  correct,  that  the  re- 
ceipts and  expenditures  are  legally  entered,  and  that  the  budget 
proposal  is  complied  with. 

At  every  regular  session  of  the  Chamber  of  Representatives 
provision  shall  be  made  for  five  auditors  of  state  finances  who 
shall  be  charged  on  behalf  of  the  Chamber  with  seeing  that 
the  budget  proposal  is  complied  with  and  with  examining  the 
condition  and  administration  of  the  treasury.  These  auditors 
shall  be  under  instructions  prescribed  by  the  Chamber  and  shall 
have  power  to  receive  from  the  competent  authorities  informa- 
tion and  documents.  They  shall  be  elected  by  the  members  of 
the  Chamber  according  to  the  method  of  proportional  represen- 
tation. In  the  same  manner  there  shall  be  elected  also  the  nec- 
essary number  of  alternates. 

Art.  72.     The  currency  of  Finland  shall  be  regulated  by  law. 

Art.  73.  The  Bank  of  Finland  shall  be  placed  under  the  guar- 
antee and  protection  of  the  Chamber  of  Representatives  and 
under  the  supervision  of  directors  elected  by  the  Chamber  of 
Representatives. 

The  Bank  of  Finland  shall  be  administered  in  accordance 
with  procedure  prescribed  by  law. 

The  Chamber  shall  determine  how  the  profits  of  the  Bank 
shall  be  used  for  the  needs  of  the  state. 

Art.  74.  Landed  property,  funds,  imposts,  or  revenue-pro- 
ducing rights  of  the  state  shall  not  be  alienated  or  hypothecated 
except  as  authorized  by  law. 

The  occupier  of  a  crown  domain  shall  nevertheless  have  the 
right  to  purchase  such  domain  for  inheritance  in  accordance 
with  special  regulations  upon  this  subject. 


482       NEW  CONSTITUTIONS  OF  EUROPE 

TITLE  VII 
NATIONAL  DEFENSE 

Art.  75.  Every  Finnish  citizen  is  required  to  participate 
in  the  defense  of  the  country  or  to  make  his  contribution  to  the 
defense  in  accordance  with  the  requirements  of  law. 

Every  conscript,  unless  he  otherwise  desires,  shall  if  possi- 
ble be  incorporated  into  a  troop  the  members  of  which  speak  his 
own  mother  tongue  (Finnish  or  Swedish),  and  shall  receive  his 
instruction  in  that  language.  Finnish  shall  be  the  language  of 
command  of  the  armed  forces. 

Art.  76.  If  it  becomes  necessary  to  put  troops  upon  a  war 
footing  the  President  shall  present  an  ordinance  for  this  purpose 
at  a  session  of  the  Council  of  State.  When  this  order  has  been 
given,  the  Council  shall  take  under  consideration  the  necessary 
measures  to  cover  the  expenditures  which  result,  and  the  Cham- 
ber of  Representatives  shall  be  convoked  in  case  it  is  not  hi 
session. 

TITLE  VIII 

EDUCATION 

Art.  77.  The  University  of  Helsingfors  shall  retain  its  right 
of  autonomy. 

New  regulations  in  respect  to  the  principles  of  organization 
of  the  University  shall  be  promulgated  by  law;  but  details  in 
respect  to  the  University  shall  be  regulated  by  ordinance.  In 
both  cases  the  Consistory  of  the  University  must  be  previously 
consulted. 

Art.  78.  The  state  shall  promote  the  study  of,  and  higher 
instruction  in,  the  technical,  agricultural,  and  commercial 
sciences  and  other  applied  sciences,  as  wdl  as  the  practice  of, 
and  higher  instruction  in,  the  fine  arts,  by  supporting  and 
creating  for  all  of  these  branches  special  schools  of  higher  learn- 
ing in  so  far  as  these  are  not  represented  at  the  University,  or 
by  giving  grants  in  aid  to  private  institutions  created  for  this 
purpose. 

Art.  79.  Institutions  giving  scientific  instruction  or  general 
intermediate  instruction  or  higher  primary  instruction  shall 
be  supported  at  the  expense  of  the  state  or,  if  need  be,  by  grants- 
in-aid.  The  principles  of  organization  of  the  secondary  schools 
of  the  state  shall  be  established  by  law. 

Art.  80.    The  principles  of  organization  of  primary  instruc- 


FINLAND  483 

tion  and  in  respect  to  the  obligations  of  the  state  and  munici- 
palities to  support  primary  schools,  as  well  as  on  the  subject 
of  compulsory  education,  shall  be  determined  by  law. 

Instruction  in  the  primary  schools  shall  be  free  to  all. 

Art.  81.  The  state  shall  support,  or  in  case  of  need  shall 
give  grants-in-aid  to,  institutions  for  instruction  in  the  technical 
professions,  in  agriculture  and  its  allied  pursuits,  in  commerce 
and  navigation,  and  in  the  fine  arts. 

Art.  82.  The  right  to  establish  private  schools  or  other  pri- 
vate institutions  of  instruction  and  to  organize  instruction  there- 
in shall  be  regulated  by  law. 

Instruction  given  at  home  shall  be  subject  to  no  supervision 
by  the  authorities. 

TITLE  IX 

RELIGIOUS  ASSOCIATIONS 

Art.  83.  The  organization  of  the  Evangelical  Lutheran 
Church  and  its  administration  shall  be  regulated  by  ecclesiastical 
law. 

Other  existing  religious  associations  shall  be  governed  by 
rules  which  are  or  shall  be  prescribed  in  respect  to  them. 

New  religious  associations  shall  be  established  in  accordance 
with  the  requirements  of  law. 


TITLE  x 
PUBLIC  OFFICES 

Art.  84.  Except  as  otherwise  provided  in  this  Article  only 
Finnish  citizens  shall  be  appointed  to  public  office. 

Employments  of  a  technical  nature,  teaching  positions  in 
the  University  or  other  schools  of  higher  learning,  positions 
of  professor  of  modern  languages  in  the  schools,  and  of  translat- 
ors in  the  administrative  services,  as  well  as  non-remunerative 
consular  posts  and  the  posts  of  clerical  assistants  and  other 
special  positions  in  legations  and  consulates,  may  be  held  by 
other  than  Finnish  citizens. 

Art.  85.  Examinations  for  appointment  to  public  office  shall 
be  regulated  by  ordinance  except  where  such  matters  are  regu- 
lated by  law.  Exemption  from  the  prescribed  merit  require- 
ments may  for  special  reasons  be  granted  by  the  Council  of 


State;  this  concession,  however,  shall  not  apply  to  employments 
in  the  judicial  service. 

Art.  86.  The  general  principles  upon  which  appointment  to 
public  offices  of  the  state  may  be  made  shall  be  merit,  capacity, 
and  proved  civic  virtue. 

Art.  87.     The  President  of  the  Republic  shall  appoint: 

(1)  The  Chancellor  of  Justice  and  his  Deputy; 

(2)  The  Archbishop  and  Bishops  and  the  Chancellor  of  the 
University; 

(3)  The  Chief  Justice  of  the  Supreme  Court  and  the  President 
of  the  Supreme  Administrative  Court,  and  upon  nomination 
by  the  Supreme  Court,  the  members  of  that  court  and  the 
presidents  of  the  courts  of  appeal  as  well  as,  upon  nomination 
by  the  Supreme  Administrative  Court,  the  members  of  that 
court; 

(4)  The  members  of  the  courts  of  appeal  and  the  professors 
in  the  University  and  in  the  Technical  High  School; 

(5)  The  heads  of  the  central  administrative  offices  and  the 
governors,  upon  nomination  by  the  Council  of  State,  and  also 
members  of  the  central  administrative  offices; 

(6)  The  officers  in  the  President's  Chancery  and,  upon  nomi- 
nation by  the  proper  authority,  the  reporters  to  the  Council 
of  State,  to  the  Supreme  Court,  and  to  the  Supreme  Adminis- 
trative Court,  and  finally; 

(7)  Ministers  plenipotentiary  and  consuls,  upon  nomination 
by  the  Council  of  State. 

Art.  88.  Judges  of  rural  tribunals  of  first  instance,  burgo- 
masters, and  presidents  of  land-partition  courts  shall  be  ap- 
pointed by  the  Supreme  Court. 

In  compliance  with  special  regulations  appointment  to  cer- 
tain employments  shall  be  made  as  follows: 

(1)  to  tribunals,  by  the  Supreme  Court  or  the  superior  court 
in  whose  jurisdiction  the  employment  falls,  and  to  the  Supreme 
Administrative  court,  by  that  court;  and 

(2)  in  administrative  offices  and  schools,  by  the  Council  of 
State,  the  minister,  the  provincial  government,  or  the  head  of 
the  office  to  which  the  employment  belongs. 

Appointment  to  other  offices  shall  be  made  by  the  Council 
of  State,  unless  the  right  of  appointment  has  been  reserved  to  the 
President  or  committed  to  some  other  authority. 

Art.  89.  In  filling  vacancies  in  the  central  administrative 
offices  and  the  employments  mentioned  in  Article  87,  Para- 


FINLAND  485 

graph  4,  and  in  Article  88,  and  subject  to  the  reservation  of  dif- 
ferent regulations  prescribed  in  Article  90,  the  position  shall 
first  be  declared  open  for  the  declaration  of  candidacies.  A 
proposal  shall  thereupon  be  prepared,  to  serve  as  a  basis  for  the 
appointment,  in  which  the  official  who  has  received  the  applica- 
tions of  candidates  shall  place  the  three  candidates  best  quali- 
fied in  accordance  with  the  principles  established.  When  it  is 
a  matter  of  filling  a  vacancy  in  the  membership  of  a  court  of 
appeal,  the  opinion  of  the  Supreme  Court  shall  be  requested  on 
the  subject  of  this  proposal. 

If  the  appointment  is  made  by  the  same  authority  to  whom 
the  applications  are  addressed,  no  nomination  is  made.  In 
accordance  with  special  regulations  certain  other  administra- 
tive employments  may  also  be  provided  for  in  a  manner  other 
than  that  indicated  in  Paragraph  1. 

Art.  90.  The  procedure  of  making  appointments  to  office 
in  the  University,  in  the  Evangelical  Lutheran  Church  and  the 
Greek  Orthodox  Church,  to  the  office  of  burgomaster  and  of  al- 
dermen in  cities,  and  to  offices  and  employments  in  the  Bank 
of  Finland  shall  be  governed  by  special  regulations. 

Officers  of  the  army  and  of  the  navy  shall  be  appointed  by 
the  President.  Regulations  governing  promotion  and  military 
instruction  shall  be  established  by  special  acts. 

Art.  91.  No  judge  shall  be  deprived  of  his  office  except  by  a 
lawful  trial  and  judgment.  The  transfer  of  a  judge  shall  take 
place  only  upon  the  reorganization  of  the  judicial  establishment 
or  at  his  own  request. 

The  right  of  other  officers  to  retain  their  offices  shall  be  regu- 
lated by  a  special  law. 

The  law  may  impose,  even  for  irremovable  officers,  an  obliga- 
tion to  retire  at  a  fixed  age  or  because  of  infirmity  involving 
incapacity  for  work. 

Special  regulations  shall  define  the  rights  and  duties  of  officers 
whose  offices  are  abolished. 

Art.  92.  In  the  exercise  of  public  functions  the  law  must 
be  strictly  followed  upon  penalty  of  the  officer's  being  held 
accountable. 

If  an  ordinance  regulation  is  contrary  to  a  fundamental  or 
other  law,  it  shall  not  be  enforced  by  a  judge  or  other  officer. 

Art.  93.  Every  officer  is  responsible  for  the  measures  that 
he  takes  or  to  which  he  contributes  in  his  capacity  as  a  member 
of  a  collegiate  administrative  office.  A  reporter  is  likewise 


486       NEW  CONSTITUTIONS  OF  EUROPE 

responsible  for  a  decision  taken  upon  his  report  unless  he  has 
recorded  his  dissenting  opinion  in  the  proceedings. 

Whoever  suffers  a  violation  of  his  right  or  injury  as  a  result 
of  an  illegal  measure  or  of  the  negligence  of  an  officer  has  the 
right  to  demand  that  this  officer  be  condemned  to  pay  a  penalty 
and  damages  or  to  lay  an  information  against  him  demanding 
his  arraignment  in  accordance  with  the  formalities  prescribed 
by  law. 

The  responsibility  of  the  state  for  damages  caused  by  an 
officer  shall  be  governed  by  special  regulations. 

TITLE   XI 

FINAL  PROVISIONS 

Art.  94.  The  election  of  the  first  President  of  the  Repub- 
lic shall  be  made  by  the  Chamber  of  Representatives  and  shall 
take  place  immediately  after  the  present  constitution  goes 
into  effect.  The  election  shall  be  by  secret  ballot.  If  a  candi- 
date obtains  more  than  half  of  the  votes  cast  he  shall  be  pro- 
claimed elected.  If  this  does  not  result,  a  new  ballot  shall 
immediately  be  taken,  and  if  no  person  obtains  this  time  an 
absolute  majority,  another  ballot  shall  be  taken  between  the 
two  candidates  who  on  the  second  count  obtain  the  largest 
number  of  votes.  In  case  of  a  tie  vote  it  shall  be  decided  by  lot. 

Art.  95.  The  present  constitution  shall  be  in  all  of  its  parts 
an  irrevocable  fundamental  law.  It  may  be  modified,  ex- 
plained, or  repealed,  and  may  be  departed  from  only  in  accord- 
ance with  procedure  provided  for  the  alteration  of  fundamental 
laws  in  general. 

The  following  laws  are  repealed  by  the  present  law:  The 
Form  of  Government  of  August  21,  1772,  and  the  Act  of  Union 
and  of  Security  of  February  21  and  April  3,  1789,  as  well  as 
of  provisions  that  appear  in  other  laws  and  regulations  which 
are  in  conflict  with  the  present  constitution. 

The  provisions  necessary  to  put  the  present  constitution  into 
effect  shall  be  promulgated  by  law. 

Notice  of  this  constitution  is  hereby  given  to  whom  it  may 
concern  to  be  followed  and  obeyed. 

Helsingfors,  July  17,  1919. 

Regent : 
MANNERHEIM 
Minister  of  Justice :  SODERHOLM. 


FINLAND  487 

EXCERPTS  FROM  THE  ORGANIC  LAW  OF 
THE  LANDTAG1 

July  20,  1906 

CHAPTER  I 
GENERAL  PRINCIPLES 

Article  1.  The  Landtag  of  the  Grand  Duchy  (Republic)  of 
Finland  shall  represent  the  people  of  Finland. 

Art.  2.  The  Landtag  shall  consist  of  a  single  chamber  of 
two  hundred  members. 

Art.  3.  The  election  of  members  of  the  Landtag  shall  take 
place  every  three  years,  at  the  same  time  throughout  the  country. 
The  mandate  of  the  members  of  the  Landtag  shall  begin  as  soon 
as  they  have  been  declared  elected  and  shall  continue  until  the 
next  election  shall  have  been  held.  The  Emperor  and  Grand 
Duke  (the  President  of  the  Republic)  shall  always  have  the 
right,  if  he  deems  it  necessary,  to  order  new  elections  prior  to 
the  expiration  of  the  triennial  period  mentioned  in  the  first 
sentence  of  this  Article.  In  such  case,  a  dissolution  of  the  Land- 
tag shall  take  place  and  the  mandate  of  the  newly  elected 
members  shall  continue  for  three  years. 

Art.  4.  The  members  of  the  Landtag  shall  be  elected  by  a  di- 
rect vote  of  the  people  and  according  to  the  principles  of  propor- 
tional representation.  The  country  shall  be  divided  for  these 
elections  into  not  less  than  twelve  nor  more  than  eighteen 
electoral  districts.  When  local  circumstances  necessitate  a 
derogation  from  the  principle  of  proportional  representation, 
there  may  be  established  in  addition  to  the  number  mentioned 
above  one  or  two  districts  for  the  election  of  single  members 
of  the  Landtag.  All  the  electors  shall  have  equal  voting  rights. 
The  right  to  vote  shall  not  be  exercised  by  proxy.  Special 
regulations  in  respect  to  electoral  districts,  and  the  time  at  which 
and  the  manner  in  which  elections  shall  be  held,  shall  be  estab- 
lished by  a  separate  electoral  law.2 

translated  from  Dareste,  Les  constitutions  modeme*,  Vol.  II,  p.  204  ff.  (3d 
ed.,  Paris,  1910).  Essential  changes  in  this  law,  by  reason  of  the  constitution  of 
1919,  are  indicated  in  parentheses. 

*This  electoral  law  was  promulgated  on  the  same  day  in  which  the  organic 
law  of  the  Landtag  was  enacted.  It  embraced  eighty  articles  and  embodied 
the  principle  of  proportional  representation.  See  above,  p.  96. 


488       NEW  CONSTITUTIONS  OF  EUROPE 

Art.  5.  The  right  to  participate  in  the  election  of  members 
of  the  Landtag  shall  belong  to  every  Finnish  citizen,  man  or 
woman,  who  has  attained  the  age  of  twenty -four  years  prior  to 
the  year  of  the  election.  The  following  persons  shall  not  en- 
joy the  right  to  vote : 

(1)  Those  who  are  in  the  active  military  service; 

(2)  Those  who  are  under  guardianship; 

(3)  Those  who  for  three  previous  years  have  not  been  regis- 
tered in  Finland; 

(4)  Those  who  for  any  cause  other  than  lack  of  resources, 
certified  by  attestation  of  the  communal  administration,  have 
failed  to  pay  the  taxes  imposed  upon  them  for  the  two  previous 
years; 

(5)  Those  who  have  personally  received  poor  relief  except 
where  such  relief  was  purely  accidental; 

(6)  Those  who  have  gone  into  bankruptcy  for  the  satisfac- 
tion of  creditors,  until  they  shall  have  declared  under  oath  that 
satisfaction  has  been  made; 

(7)  Those  who  have  been  condemned  to  public  work  on  ac- 
count of  vagrancy,  until  the  expiration  of  the  third  year  follow- 
ing their  release; 

(8)  Those  who  by  reason  of  a  regular  adjudication  have  been 
declared  discredited  or  unworthy  to  be  employed  in  the  service 
of  the  state  or  to  solicit  such  employment  for  others; 

(9)  Those  who  have  been  convicted  of  having  bought  or  sold 
votes  at  a  Landtag  election  or  of  having  attempted  to  do 
so,  or  of  having  voted  in  place  of  another  voter,  or  of  having 
interfered  with  the  freedom  of  the  vote  by  violence  or  intimida- 
tion, until  the  expiration  of  the  sixth  year  after  that  in  which 
the  final  judgment  has  been  rendered. 

Art.  6.  Every  elector  shall  be  eligible  to  a  seat  in  the  Land- 
tag without  respect  to  his  place  of  domicile. 

Art.  7.  Every  functionary  who  attempts  to  use  his  authority 
in  order  to  influence  an  election  to  the  Landtag  shall  lose  his  of- 
fice. Whoever  shall  by  promises  or  bribery  interfere  with  free- 
dom of  voting  shall  be  punished  by  imprisonment  for  not  more 
than  three  years.  In  case  of  violence  or  intimidation  the  pun- 
ishment shall  be  imprisonment  for  not  less  than  a  month  nor 
more  than  a  year.  If  the  guilty  person  is  a  functionary  he  shall 
in  addition  lose  his  office.  An  employer  who  does  not  give  to 
his  employees,  as  far  as  possible,  full  opportunity  to  exercise 
the  right  of  voting  shall  be  punished  by  fine. 


FINLAND  489 

Art.  8.  Those  who,  in  conformity  with  the  electoral  law, 
have  been  declared  elected  as  members  of  the  Landtag  shall  not 
resign  their  mandate  unless  they  can  present  a  legitimate  excuse 
or  some  other  reason  satisfactory  to  the  Landtag. 

Art.  9.  The  members  of  the  Landtag  shall  be  held  to  per- 
form their  duties  in  accordance  with  right  and  truth.  They  are 
in  consequence  compelled  to  observe  the  constitutional  laws  and 
are  not  bound  by  any  other  restriction. 

Art.  10.  Members  of  the  Landtag  may  not  refuse  to  attend 
the  Landtag  and  to  exercise  their  functions. 

Art.  11.  Members  of  the  Landtag  may  not  be  indicted  nor 
deprived  of  their  liberty  because  of  the  opinions  expressed  by 
them,  nor  in  general  because  of  their  conduct  during  debates, 
unless  the  Landtag  shall  authorize  such  action  by  a  vote  of  at 
least  five-sixths  of  the  members  present. 

Art.  12.  During  the  sessions  of  the  Landtag  no  member  shall 
without  authorization  of  the  Landtag  be  arrested  for  a  misde- 
meanor, unless  his  arrest  has  been  ordered  by  a  judge,  or  unless 
he  has  been  taken  in  an  act  punishable  by  at  least  six  months' 
imprisonment.  If  a  member  of  the  Landtag  is  arrested  on  his 
way  to  the  Landtag  for  an  offense  other  than  that  set  forth  in 
the  first  sentence  of  this  paragraph  he  shall  be  set  at  liberty, 
provided  the  Landtag  shall  so  decide.  Notice  of  the  arrest  of 
any  member  of  the  Landtag  shall  immediately  be  given  to  the 
President. 

Art.  13.  If  in  proceeding  to  or  returning  from  the  Landtag, 
or  during  its  sessions,  a  member  shall  be  insulted  or  assaulted, 
and  if  the  offense  shall  have  been  committed  with  full  knowledge 
of  his  membership  in  the  Landtag,  or  if,  after  the  session,  the 
member  is  the  victim  of  violence  because  of  the  manner  in  which 
he  has  exercised  his  powers,  the  fact  that  the  misdemeanor  has 
been  committed  against  a  member  of  the  Landtag  shall  be  con- 
sidered as  a  peculiarly  aggravating  circumstance.  The  same 
shall  apply  in  respect  to  the  secretaries  and  employees  of  the 
Landtag. 

Art.  14.  The  members  of  the  Landtag  shall  receive  a  salary 
payable  out  of  public  funds  and  in  addition  their  expenses  in 
travelling  to  and  from  the  Landtag.  Their  salary  shall  be  four- 
teen hundred  marks  for  every  regular  session,  or  if  the  Land- 
tag is  dissolved  or  if  its  business  has  been  completed  less  than 
ninety  days  after  the  opening  of  the  session,  the  salary  shall  be 
fifteen  marks  per  day.  During  regular  sessions  which  are  held 


490       NEW  CONSTITUTIONS  OF  EUROPE 

after  a  dissolution  of  the  Landtag,  and  after  new  elections  have 
taken  place  at  a  period  other  than  the  regular  period,  as  well  as 
during  extraordinary  sessions,  the  salary  shall  be  determined 
as  indicated  in  the  second  instance  above,  but  the  salary  shall 
not  exceed  a  total  of  four  hundred  marks. 

Art.  15.  If  a  member  of  the  Landtag  fails  to  present  him- 
self upon  the  day  prescribed  for  the  opening  of  the  session,  or 
if  he  fails  to  attend  the  meetings  without  permission  of  the 
Landtag,  and  if  he  can  not  present  an  excuse  satisfactory  to  the 
Landtag,  he  may  be  condemned  by  the  Landtag  to  a  loss  of 
fifteen  marks  of  his  salary  for  each  day  of  his  absence  and  in 
addition  to  a  fine  which  must  not  exceed  fifteen  marks.  If  such 
a  member  fails  to  pay  his  fine,  the  Landtag  may  declare  his 
mandate  forfeited. 

CHAPTER  n 

OPENING,  DISSOLUTION,  AND  ADJOURNMENT  OF  THE 
LANDTAG 

Art.  16.  The  opening  of  the  Landtag  shall  take  place  at  the 
capital  of  Finland  (Helsingf ors) ,  except  when  an  invasion  by  the 
enemy  or  some  other  serious  obstacle  renders  this  impossible  or 
dangerous  to  the  security  of  the  State,  in  which  case  another 
place  of  meeting  shall  be  indicated  by  the  Emperor  and 
Grand  Duke  (the  President  of  the  Republic). 

Art.  17.  The  Landtag  shall  assemble  every  year  in  regular 
session  upon  a  call  specially  issued  for  each  occasion  on  the  first 
day  of  the  month  of  February,  unless  the  Emperor  and  Grand 
Duke  (the  President  of  the  Republic)  fixes  another  day  of  the 
year,  and  it  shall  adjourn  under  a  standing  order  the  ninetieth 
day  following,  unless  the  Emperor  and  Grand  Duke  (the  Presi- 
dent of  the  Republic),  pursuant  to  his  own  personal  judgment 
or  in  conformity  with  a  request  of  the  Landtag,  decides  that  the 
adjournment  of  the  session  shall  be  advanced  or  deferred.  If 
one  of  the  dates  mentioned  in  the  preceding  sentence  or  in  any 
other  article  in  this  law  falls  upon  a  holiday,  the  first  day  follow- 
ing the  holiday  shall  be  taken  for  the  date  fixed. 

Art.  18.  If  the  Emperor  and  Grand  Duke  (the  President  of 
the  Republic)  calls  a  new  election  during  the  course  of  a  regular 
session,  the  Landtag  shall  adjourn  to  a  day  fixed  by  the  Emperor 
and  Grand  Duke  (the  President  of  the  Republic).  In  such  case 
the  Landtag  shall  reassemble  again  in  regular  session  after  the 
new  elections  on  the  first  day  of  the  month  that  commences 


FINLAND  491 

immediately  after  the  ninetieth  day  following  the  dissolution, 
or  upon  an  earlier  date  fixed  by  the  Emperor  and  Grand  Duke 
(the  President  of  the  Republic).  If  a  new  election  is  ordained 
after  the  adjournment  of  the  regular  session,  and  if  the  election 
can  not  be  held  before  the  first  day  of  the  month  of  February 
following,  the  reassembling  of  the  Landtag  in  regular  session 
shall  be  postponed  to  the  first  day  of  the  month  which  follows 
the  proclamation  of  the  result  of  the  vote. 

Art.  19.  The  Emperor  and  Grand  Duke  (the  President  of  the 
Republic)  shall  have  power  to  convoke  the  Landtag  in  extraor- 
dinary session  and  to  decide  when  it  must  adjourn.  The  Land- 
tag may  not  be  called  in  extraordinary  session  upon  less  than 
fifteen  days'  notice,  and  the  session  can  not  be  prolonged  beyond 
the  last  day,  not  a  holiday,  preceding  the  opening  of  the  regular 
session.  In  an  extraordinary  session  the  Landtag  may  deal 
only  with  those  matters  for  which  it  was  convoked  or  which 
are  submitted  to  it  by  the  Emperor  and  Grand  Duke  (the  Presi- 
dent of  the  Republic),  as  well  as  with  such  questions  as  are  in- 
separably connected  with  those  matters. 

Art.  20.  The  orders  of  the  Emperor  and  Grand  Duke  (the 
President  of  the  Republic)  mentioned  in  Articles  16,  18,  and  19 
shall  be  published  in  the  manner  prescribed  for  the  promulga- 
tion of  the  laws  in  Finland.  The  order  calling  for  new  elections 
shall  moreover  be  transmitted  to  the  governors  and  to  authorities 
or  councils  charged  with  the  conduct  of  the  elections. 

Art.  21.  On  the  day  on  which  the  Landtag  assembles  the 
members  of  the  Landtag  shall  present  their  credentials,  beginning 
at  eleven  o'clock  in  the  morning,  in  the  order  which  shall  be 
determined  by  a  posted  placard,  to  the  person  or  persons  desig- 
nated by  the  Emperor  and  Grand  Duke  (the  President  of  the 
Republic)  for  the  purpose  of  verifying  these  credentials.  When 
credentials  are  presented  for  the  first  time,  they  shall  be  ex- 
amined to  see  whether  they  have  been  drawn  up  by  a  compe- 
tent authority  and  in  the  form  prescribed.  A  list  of  the  mem- 
bers duly  seated  shall  be  returned  to  the  Landtag  on  the  next 
day,  before  ten  o'clock  in  the  morning.  Every  member  of  the 
Landtag  who  arrives  after  the  beginning  of  the  session  shall 
take  his  seat  after  having  presented  to  the  President  of  the 
Landtag  his  credentials,  regularly  verified  as  required  in  the  first 
sentence  of  this  Article. 

Art.  22.  When  the  credentials  of  a  member  of  the  Landtag 
have  been  refused,  the  Landtag  shall  have  the  right  to  inquire 


492       NEW  CONSTITUTIONS  OF  EUROPE 

whether  there  is  any  justification  for  the  seating  of  such  a 
member.  If  in  the  course  of  the  session  a  contest,  founded 
upon  this  law,  is  raised  in  respect  to  the  qualification  of  a  mem- 
ber of  the  Landtag  to  take  his  seat,  the  examination  of  this  con- 
test shall  always  be  undertaken  by  the  Landtag,  unless  this 
same  contest  has  already  been  or  may  still  be  submitted  to 
the  decision  of  the  competent  authority  by  way  of  an  election 
appeal.  The  question  of  the  validity  of  elections  may  not 
be  otherwise  debated  in  the  Landtag,  unless  the  contest  turns 
upon  a  manifestly  unlawful  act  which  took  place  at  the 
time  of  the  election  or  of  the  electoral  procedure,  or  upon 
an  indisputable  error  in  the  proclamation  of  the  result  of 
the  vote.  In  such  case,  when  it  is  evident,  not  only  that  the 
offense  or  error  may  have  exercised  an  influence  upon  the 
result  of  the  vote,  but  also  that  it  could  not  possibly  be 
remedied  by  way  of  appeal,  the  Landtag  may  for  this  pur- 
pose take  any  measures  that  are  compatible  with  the  provisions 
of  the  electoral  law.  The  member  of  the  Landtag  whose  seat 
is  under  contest  shall  continue,  nevertheless,  to  exercise  his  man- 
date until  it  shall  have  been  declared  invalid. 

Art.  23.  On  the  day  following,  the  Landtag  shall  assemble 
at  ten  o'clock  in  the  morning  in  full  session,  which  shall  be  opened 
by  calling  the  roll  upon  the  list  mentioned  in  Article  21.  In 
this  full  session  the  Landtag  shall  elect  from  among  its  own  mem- 
bers a  President  (Talmari)  and  two  Vice-Presidents.  There- 
upon the  President  and  the  Vice-Presidents,  one  after  the  other, 
in  the  presence  of  the  assembled  Landtag,  shall  make  the  follow- 
ing affirmation:  "I,  N.  N.,  promise  that  in  the  exercise  of  my 
duties  as  President,  I  will  maintain  with  all  my  power  the  right  of 
the  Emperor  and  Grand  Duke  (the  President  of  the  Republic) , 
as  well  as  of  the  Landtag  and  of  the  people  of  Finland,  in  con- 
formity with  the  constitutional  laws."  Until  these  formalities 
shall  have  been  observed,  the  oldest  member  of  the  Landtag  shall 
act  as  President.  The  minutes  shall  be  taken  by  such  person 
as  this  oldest  member  shall  choose  for  this  purpose.  The  secre- 
taries and  the  personnel  of  the  secretariat  shall  be  named  in 
such  manner  as  may  be  determined  by  the  Landtag.  Upon 
the  day  and  at  the  hour  fixed  by  the  Emperor  and  Grand  Duke 
(the  President  of  the  Republic)  the  members  of  the  Landtag, 
after  divine  service,  shall  assemble  in  the  hall  of  the  throne, 
where  the  Emperor  and  Grand  Duke  (the  President  of  the 
Republic)  or  his  delegate  shall  welcome  the  Landtag  and  declare 


FINLAND  493 

the  session  open,  after  which  the  Landtag,  speaking  through  its 
President,  shall  express  its  respects. 

Art.  24.  At  the  close  of  the  session  the  members  of  the  Land- 
tag shall  assemble,  after  divine  service,  on  the  day  and  at  the 
hour  fixed  by  the  Emperor  and  Grand  Duke  (the  President  of 
the  Republic)  in  the  hall  of  the  throne,  where  the  President  of  the 
Landtag  in  the  presence  of  the  Emperor  and  Grand  Duke  (the 
President  of  the  Republic)  or  his  delegate  shall  express  the  re- 
spects and  good  wishes  of  the  Landtag  and  shall  present  the 
minutes  of  the  Landtag;  whereupon  the  Emperor  and  Grand 
Duke  (the  President  of  the  Republic)  or  his  delegate  shall  de- 
clare the  session  closed. 

CHAPTER  III 
CONCERNING  THE  INTRODUCTION  OF  BUSINESS  IN  THE  LANDTAG 

CHAPTER  IV 
CONCERNING  THE  APPORTIONMENT  OF  BUSINESS 

CHAPTER  V 

DISCUSSION  OF  BUSINESS  IN  FULL  SESSION  AND  IN  THE 
COMMITTEE  OF  THE  WHOLE 

CHAPTER  VI 
MEASURES  CONCERNING  THE  BANK  OF  FINLAND 

CHAPTER  vn 

CONCERNING  THE  COMMUNICATION  OF  THE  DECISIONS  AND 
DECLARATIONS  OF  THE  LANDTAG 

Art.  75.  When  the  Landtag  shall  enact  a  law,  upon  the  pro- 
posal of  the  Emperor  and  Grand  Duke  (the  President  of  the 
Republic), directed  toward  the  establishment, modification, inter- 
pretation or  abrogation  of  a  constitutional  law,  or  upon  a  propos- 
al or  motion  concerning  one  of  those  other  laws  which  require 
the  coordinate  decision  of  the  Emperor  and  Grand  Duke  (the 
President  of  the  Republic)  and  of  the  Landtag,  the  proposal  shall 
be  transmitted  with  a  message  by  the  Landtag  for  examination 


494       NEW  CONSTITUTIONS  OF  EUROPE 

by  the  Emperor  and  Grand  Duke  (the President  of  the  Republic), 
in  order  to  receive  his  sanction  and  be  converted  into  law.  If 
the  project  is  not  approved  without  amendment  by  the  Emperor 
and  Grand  Duke  (the  President  of  the  Republic) ,  and  if  in  con- 
sequence it  fails  entirely,  notice  to  this  effect  shall  be  given  to 
the  Landtag  at  the  first  session  which  follows  the  decision  of 
the  Emperor  and  Grand  Duke  (the  President  of  the  Republic) 
in  respect  to  the  matter.  All  other  decisions  and  declarations 
made  by  the  Landtag  in  response  to  proposals  and  requests  made 
by  the  Emperor  and  Grand  Duke  (the  President  of  the  Republic), 
as  well  as  all  petitions  to  the  Emperor  and  Grand  Duke  (the 
president  of  the  Republic)  voted  by  the  Landtag  shall  likewise 
be  transmitted  to  the  Emperor  and  Grand  Duke  (the  President 
of  the  Republic)  in  the  form  of  messages  from  the  Landtag. 

Art.  76.  Messages  emanating  from  the  Landtag  and  the  min- 
utes of  the  Landtag  shall  be  drawn  up  and  dispatched  by  a  spe- 
cial committee  called  the  committee  of  dispatch.  No  dispatch 
shall  be  delivered  as  proceeding  from  the  Landtag  until  it  shall 
have  been  approved  by  the  Landtag  or  by  a  committee  of  re- 
vision. Committees  of  dispatch  and  of  revision  shall  be  com- 
posed of  nine  members  each  and  of  the  necessary  number  of 
alternates. 

Art.  77.  The  minutes  of  the  Landtag,  as  well  as  petitions 
emanating  from  it,  shall  be  signed  by  all  the  members  of  the 
Landtag;  other  messages  shall  be  signed  only  by  the  President 
and  the  Vice-President. 

CHAPTER  vm 
SPECIAL  PROVISIONS 

Art.  78.  Proposals  from  the  Emperor  and  Grand  Duke  (the 
President  of  the  Republic),  reports  of  committees,  messages 
from  the  Landtag  to  the  Emperor  and  Grand  Duke  (the  Presi- 
dent of  the  Republic),  the  journal  and  the  minutes  of  the  Land- 
tag shall  be  printed  and  published. 

Art.  79.  The  expenses  of  the  Landtag  shall  be  paid  by  the 
treasury  department. 

CHAPTER  IX 
FINAL  PROVISION 

This  organic  law  of  the  Landtag,  which  repeals  the  organic 
law  of  the  Landtag  of  Finland  of  April  15,  1869,  the  manifes- 


FINLAND  495 

tos  of  March  2,  1879,  June  25,  1886,  and  December  14,  1897, 
shall  be  as  to  all  of  its  provisions  an  inviolable  constitutional 
law  until  it  shall  have  been  amended  or  repealed  by  concurrent 
decision  of  the  sovereign  (the  President  of  the  Republic)  and 
of  the  Landtag  of  Finland. 

All  of  the  provisions  of  law  that  are  in  force  in  respect  to  the 
States  of  Finland  shall  apply  to  the  Landtag  created  by  this 
constitutional  law,  except  such  provisions  as  are  contrary  to 
this  organic  law. 


APPENDICES 


APPENDIX  I 
BELGIUM 

1.  HISTORICAL  NOTE1 

"The  Protocol  of  June  21, 18142  united  Belgium  with  Holland, 
and  the  constitutional  law  of  the  Netherlands,  promulgated  on 
August  27,  1815,3  was  therefore  common  to  the  two  countries 
until  the  Belgian  revolution  of  August  25,  1830.  A  National 
Congress  of  Belgians  was  convened  on  November  10,  1830,  but 
even  before  it  met,  the  provisional  government  of  Brussels,  by 

lThe  Belgian  constitution  had  a  material  influence  on  the  provisions  of  the 
new  European  constitutions  and  has  recently  been  subjected  to  a  considerable 
revision.  For  these  reasons  it  is  included  in  the  present  volume.  The  changes 
effected  in  1921  are  translated  from  the  French  text,  "La  Constitution  beige 
revisee,"  Revue  du  droit  public  el  de  la  science  politique,  Vol.  XXXIII,  p.  553 
(Octobre-Nov.-Dec.  1921).  The  articles  revision  of  which  was  proposed  by  the 
legislature  in  1919  were  the  following:  26,  27  clause  2,  39,  47,  48,  49,  50,  51,  52, 
53,  54,  55,  56,  56A,  57,  59,  69,  95  ckuse  1,  104,  105,  106,  108  clause  2,  paragraph 
2,  122,  123,  131.  Articles  that  were  actually  revised  by  the  new  legislature  in 
1921  were:  47,  48,  50,  51,  52,  53,  55,  56,  56A,  57,  108  ckuse  2,  paragraph  2,  and 
122.  Articles  27  clause  2  and  123  were  abrogated.  The  transitional  provisions 
in  Articles  47,  52,  53,  56A,  and  the  whole  of  Articles  56B  and  56C  were  added. 

The  text  of  the  articles  which  were  not  amended  in  1921  is  that  given  by  H.  F. 
Wright,  Ed.,  The  Constitutions  of  the  States  at  War,  1914-1918,  p.  43  (Washing- 
ton, Government  Printing  Office,  1919).  This  "  translation  is  based  upon  W.  F. 
Dodd,  Modern  Constitutions,  Vol.  I,  pp.  126-148  (Chicago,  1909),  which  is  based 
in  part  on  the  transktion  of  J.  M.  Vincent  and  A.  S.  Vincent  in  the  Supplement 
to  the  Annals  of  the  American  Academy  of  Political  and  Social  Sciences,  May,  1896, 
pp.  309-333  (Philadelphia,  1896)."  English  translation  (by  Francis  B.  Lee)  of 
the  Constitution  of  1831  without  the  amendments  of  1893  appears  in  Foreign 
Constitutions  [The  Convention  Manual  of  the  Sixth  New  York  State  Constitutional 
Contention,  1894,  Part  2,  Vol.  3]  pp.  35-54  (Albany,  1894).  French  text  in 
Dareste,  Les  constitutions  modernes,  Vol.  I,  pp.  74-95  (Paris,  1910),  and  a  Ger- 
man translation  in  Paul  Posener,  Die  Staatsverfassungen  des  Erdballs,  pp.  2-16 
(Charlottenburg,  1909). 

In  the  translation  of  the  new  provisions  the  idiom  of  the  old  text  has  in  some 
cases  been  adopted  even  though  it  may  differ  from  that  used  in  the  other  con- 
stitutions specially  translated  for  this  volume.  The  footnotes,  with  the  excep- 
tion of  those  relating  to  the  1921  revision,  are  taken  from  Wright,  op  cit.,  as  are 
the  quoted  paragraphs  of  this  historical  introduction. 

'Signed  at  Vienna  on  June  14  and  approved  at  Paris  on  June  21.  French 
text  in  Martens,  Nouveau  Recueil,  Supp.  1 :  p.  330;  English  transktion  in  Hert- 
slet,  Map  of  Europe  by  Treaty,  Vol.  I.  p.  40  (London,  1875). 

'French  text  in  British  and  Foreign  State  Papers,  3:  pp.  16-48. 

499 


500  APPENDIX  I 

decrees  of  October  6,  7,  8,  9,  and  14,  1830,  named  a  committee  of 
twelve  to  prepare  an  outline  of  a  constitution.  This  committee 
declared  itself  in  favor  of  the  adoption  of  a  constitutional  mon- 
archy as  the  form  of  government.  The  National  Congress  pro- 
claimed the  independence  of  Belgium  on  November  18,1  and 
adopted  the  monarchical  form  of  government  and  the  bicameral 
system  of  representation  on  November  22.  The  constitution 
was  drafted  on  the  basis  of  the  outline  adopted  by  the  committee 
of  twelve  and  was  passed  in  its  entirety  on  February  7,  1831, 
which  is  the  date  officially  given  to  it,  although  it  was  not  pro- 
mulgated until  February  II.2  Leopold  of  Saxe-Coburg  became 
King  in  June  of  the  same  year.  The  Belgian  constitution  of 
1831  remained  unaltered  for  over  60  years,  and  proposals  for  its 
revision  were  rejected  by  large  majorities  in  1871,  1883,  and 
1887. 

"  In  1892,  however,  the  three  powers  of  the  state  united  in  ask- 
ing for  the  revision  of  13  articles  of  the  constitution,  the  special 
object  of  the  reform  being  the  electoral  system  of  the  two  houses. 
New  houses  were  elected  on  June  14  following,  in  conformity 
with  Article  131  of  the  constitution.  A  series  of  decrees,  all 
dated  September  7,  1893,  promulgated  the  text  of  the  revised 
articles.3 

"In  accordance  with  a  treaty  signed  at  Brussels  on  November 
28,  1907,4  the  administration  of  Congo  Free  State  was  taken  over 
by  Belgium,  and,  by  a  royal  decree  of  November  4,  1908,  the  date 
November  15  was  fixed  for  the  actual  assumption  of  the  exer- 
cise of  the  sovereign  rights.  On  October  18,  1908,5  a  separate 
constitutional  law  for  the  Congo  was  sanctioned  by  the  King."6 

The  revision  of  1921  was  proposed  by  the  chambers  elected  in 
1919.  They  decided  on  the  abandonment  of  plural  voting,  in- 
troduced proportional  representation  into  the  constitution,7  and 
refused  to  propose  the  referendum;  but  they  found  difficulty  in 
agreeing  upon  a  new  organization  for  the  Senate.  The  plan 
finally  adopted  is,  in  the  phrase  of  a  Belgian  writer,  a  "hybrid 


text  of  the  Proclamation  in  British  and  Foreign  State  Papers,  17:  p. 
1241. 

*  French  text  of  the  Proclamation  in  British  and  Foreign  State  Papers,  18:  p. 
10552. 

'French  text  of  the  decrees,  each  of  which  contains  one  revised  article,  in 
British  and  Foreign  State  Papers,  85  :  pp.  783-788. 

•French  text  in  British  and  Foreign  State  Papers,  100:  pp.  705-706. 

'French  text  of  the  Law  of  October  18,  1908.  in  British  and  Foreign  State  Papers, 
101  :  pp.  733-742,  and  Dareste,  op.  cit.,  vol.  I,  pp.  88-104. 

"These  introductory  paragraphs  [in  Wright,  op.  cit.]  are  based  on  Dareste,  op. 
tit.,  pp.  73  and  96-97. 

TSee  above,  p.  93. 


BELGIUM  501 

formula,"  which  embodies  elements  of  different  solutions  in  order 
to  conciliate  different  groups.1 

2.  CONSTITUTION  OF  BELGIUM,  FEBRUARY  7, 
1831,  WITH  AMENDMENTS  OF  1893  AND  1921 

TITLE  I.  THE  TERRITORY  AND  ITS  DIVISIONS 

ARTICLE  I.2     Belgium  is  divided  into  provinces. 

These  provinces  are:  Antwerp,  Brabant,  West  Flanders,  East 
Flanders,  Hainaut,  Liege,  Limbourg,  Luxembourg,  Namur. 

If  there  should  be  occasion  for  it,  the  territory  may  be  divided 
by  law  into  a  greater  number  of  provinces. 

The  colonies,  possessions  beyond  the  sea,  or  protectorates 
which  Belgium  may  acquire  shall  be  governed  by  special  laws. 
The  Belgian  forces  required  for  their  defense  shall  be  recruited 
only  by  voluntary  enlistment. 

Art.  2.  Subdivisions  of  the  provinces  shall  not  be  made  ex- 
cept by  law. 

Art.  3.  The  boundaries  of  the  state,  of  the  provinces,  and  of 
the  communes  shall  not  be  changed  or  rectified  except  by  law. 

TITLE  II.  BELGIAN  CITIZENS  AND  THEIR  RIGHTS 

Art.  4.  Belgian  nationality  is  acquired,  retained,  and  lost 
according  to  regulations  established  by  the  civil  law. 

The  present  constitution  and  the  other  laws  relating  to  politi- 
cal rights  determine  what  other  conditions  are  necessary  for  the 
exercise  of  these  rights. 

Art.  5.     Naturalization  is  granted  by  the  legislative  power. 

Full  naturalization  alone  admits  foreigners  to  equality  with 
Belgians  in  the  exercise  of  political  rights. 

Art.  6.     There  shall  be  no  distinction  of  classes  in  the  state. 

All  Belgians  are  equal  before  the  law;  they  alone  are  admis- 
sible to  civil  and  military  offices,  with  such  exceptions  as  may  be 
established  by  law  for  particular  cases. 

Art.  7.     Individual  liberty  is  guaranteed. 

No  one  may  be  prosecuted  except  in  cases  provided  for  by  law 
and  in  the  form  therein  prescribed. 

1See  Hermann  Dumont,  "La  vie  politique  et  parlementaire  en  Belgique," 
Revue  politique  et  parlementaire,  Vol.  ex,  p.  470  (10  Mars,  1922).  The  changes 
in  the  organization  of  the  Senate  are  indicated  below,  Chapter  I,  Section  II. 

4  As  amended  September  7,  1893.  The  boundaries  of  the  Kingdom  of  Belgium 
were  definitively  fixed  by  the  treaty  of  April  19,  1839.  The  provision  regarding 
colonies  was  introduced  in  1893  to  give  the  government  power  to  administer 
the  Congo  Free  State  when  it  should  become  a  Belgian  possession. 


502  APPENDIX  I 

Except  when  one  is  taken  in  the  commission  of  an  offense  no 
one  may  be  arrested  without  a  warrant  issued  by  a  magistrate, 
which  ought  to  be  shown  at  the  time  of  arrest,  or  at  the  latest 
within  twenty-four  hours  thereafter. 

Art.  8.  No  person  shall  be  removed  against  his  will  from  the 
jurisdiction  of  the  judge  to  whom  the  law  assigns  him. 

Art.  9.  No  penalty  shall  be  established  or  enforced  except 
by  virtue  of  a  law. 

Art.  10.  The  private  domicile  is  inviolable;  no  search  of 
premises  shall  take  place  except  in  the  cases  provided  for  by 
law  and  according  to  the  form  therein  prescribed. 

Art.  11.  No  one  may  be  deprived  of  his  property  except  for 
a  public  purpose  and  according  to  the  forms  established  by 
law,  and  in  consideration  of  a  just  compensation  previously  de- 
termined. 

•••   Art.  12.     Punishment  by  confiscation  of  property  shall  not 
be  established. 

Art.  13.  Total  deprivation  of  civil  rights  (mort  civile)  is  abol- 
ished and  shall  not  be  reestablished.1 

Art.  14.  Religious  liberty  and  the  freedom  of  public  worship, 
as  well  as  free  expression  of  opinion  in  all  matters,  are  guaranteed 
with  the  reservation  of  power  to  suppress  offenses  committed  in 
the  use  of  these  liberties. 

Art.  15.  No  one  shall  be  compelled  to  join  in  any  manner 
whatever  in  the  forms  of  ceremonies  of  any  religious  denomi- 
nation, nor  to  observe  its  days  of  rest. 

Art.  16.  The  state  shall  not  interfere  either  in  the  appoint- 
ment or  in  the  installation  of  the  ministers  of  any  religious  de- 
nomination whatever,  nor  shall  it  forbid  them  to  correspond 
with  their  superiors  or  to  publish  their  proceedings,  subject,  in 
the  latter  case,  to  the  ordinary  responsibility  of  the  press  and  of 
publication. 

Civil  marriage  shall  always  precede  the  religious  ceremony, 
except  in  cases  to  be  established  by  law  if  found  necessary. 

Art.  17.  Private  instruction  shall  not  be  restricted;  all  meas- 
ures interfering  with  it  are  forbidden ;  the  repression  of  offenses 
shall  be  regulated  by  law. 

Public  instruction  given  at  the  expense  of  the  state  shall  like- 
wise be  regulated  by  law. 

Art.  18.  The  press  is  free;  no  censorship  shall  ever  be  estab- 
lished; no  security  shall  be  exacted  of  writers,  publishers,  or 
printers.2 

1La  mort  civile  is  abolished  as  a  punishment  by  itself.  The  condition  follows 
as  a  secondary  consequence  of  condemnation  to  death,  hard  labor,  or  transpor- 
tation for  life. 

2See  also  Articles  96  and  98  which  relate  to  trials  of  offenses  of  the  press. 


BELGIUM  503 

In  case  the  writer  is  known  and  is  a  resident  of  Belgium,  the 
publisher,  printer,  or  distributor  shall  not  be  prosecuted. 

Art.  19.  Belgians  have  the  right,  without  previous  author- 
ization, to  assemble  peaceably  and  without  arms,  conforming 
themselves  to  the  laws  which  regulate  the  exercise  of  this  right. 

This  provision  does  not  apply  to  assemblies  in  the  open  air, 
which  remain  entirely  under  the  police  laws. 

Art.  20.  Belgians  have  the  right  of  association;  this  right 
shall  not  be  restricted  by  any  preventive  measure. 

Art.  21.  Anyone  has  the  right  to  address  petitions  to  the 
public  authorities,  signed  by  one  or  more  persons. 

Legally  organized  bodies  alone  have  the  right  to  petition  under 
a  collective  name. 

Art.  22.  The  privacy  of  correspondence  is  inviolable.  The 
law  shall  determine  who  are  the  agents  responsible  for  the  vio- 
lation of  the  secrecy  of  letters  entrusted  to  the  post. 

Art.  23.  The  use  of  the  languages  spoken  in  Belgium  is  op- 
tional. This  matter  may  be  regulated  only  by  law  and  only  for 
acts  of  public  authority  and  for  judicial  proceedings.1 

Art.  24.  No  previous  authorization  is  necessary  to  bring 
action  against  public  officials  for  the  acts  of  their  administration, 
except  as  provided  for  ministers.2 


TITLE  III.  CONCERNING  POWER 

Art.  25.    All  powers  emanate  from  the  people. 

They  shall  be  exercised  in  the  manner  established  by  the  con- 
stitution. 

Art.  26.  The  legislative  power  shall  be  exercised  collectively 
by  the  King,  the  House  of  Representatives,  and  the  Senate.8 

Art.  27.  Each  of  the  three  branches  of  the  legislative  power 
shall  have  the  right  of  initiative. 

[Nevertheless,  all  laws  relating  to  the  revenues  or  expenditures 
of  the  state  or  to  the  army  contingent  must  be  voted  first  by 
the  House  of  Representatives].4 

Art.  28.  The  authoritative  interpretation  of  the  laws  shall 
belong  only  to  the  legislative  power. 

Art.  29.  The  executive  power  is  vested  in  the  King,  subject 
to  the  regulations  of  the  constitution. 

'Laws  and  royal  decrees  are  published  in  French  in  the  Monteur;  the  French 
text  is  the  only  official  text.  Flemish  may  be  used  in  some  officml  documents 
(see  Dareste,  op.  til.,  p.  77,  note  1). 

'See  below,  Articles  63,  90,  and  134. 

'This  article  was  proposed  far  revision  in  1921  but  was  left  unchanged. 

'Stricken  out  in  1921. 


504  APPENDIX  I 

Art.  30.  The  judicial  power  shall  be  exercised  by  the  courts 
and  the  tribunals. 

Decrees  and  judgments  shall  be  executed  in  the  name  of  the 
King. 

Art.  31.  Exclusively  communal  or  provincial  affairs  shall  be 
regulated  by  the  communal  or  provincial  councils,  according  to 
the  principles  established  by  the  constitution. 

CHAPTER  I.      THE  HOUSES 

Art.  32.  The  members  of  the  two  houses  shall  represent  the 
nation,  and  not  the  province  alone,  nor  the  subdivision  of  the 
province  which  elected  them. 

Art.  33.     The  sessions  of  the  houses  shall  be  public. 

Nevertheless,  each  house  may  resolve  itself  into  a  secret  com- 
mittee upon  the  demand  of  its  President  or  of  ten  members. 

It  shall  then  decide  by  vote  of  an  absolute  majority  whether 
the  session  shall  be  resumed  in  public  upon  the  same  subject. 

Art.  34.  Each  house  shall  judge  of  the  qualifications  of  its 
own  members,  and  shall  decide  all  contests  which  arise  upon  that 
subject. 

Art.  35.  No  person  shall  at  the  same  time  be  a  member  of 
both  houses. 

Art.  36.  Any  member  of  either  of  the  two  houses,  who  shall 
be  appointed  by  the  government  to  any  other  salaried  office 
except  that  of  minister,  and  who  accepts  the  same,  shall  vacate 
his  seat  immediately,  and  may  resume  his  duties  only  by  virtue 
of  a  new  election.1 

Art.  37.  At  each  session,  each  of  the  houses  shall  elect  its 
President,  its  Vice-President,  and  shall  form  its  bureau.2 

Art.  38.  An  absolute  majority  of  the  votes  shall  be  necessary 
to  pass  any  resolution  except  as  otherwise  established  by  the 
rules  of  the  houses  in  regard  to  elections  and  nominations.3 

In  case  of  an  equal  division  of  votes,  the  proposition  under 
consideration  is  rejected. 

Neither  of  the  two  houses  shall  pass  a  resolution  unless  a 
majority  of  its  members  are  present. 

Art.  39.  The  votes  shall  be  viva  voce  or  by  rising  and  sitting; 
the  vote  on  a  law  as  a  whole  shall  always  be  by  roll  call  and  viva 


'As  amended  7  September,  1893.  By  the  original  article  ministers  were  also 
required  to  seek  reelection.  The  principle  laid  down  in  this  article,  developed 
in  Articles  238  and  239  of  the  Electoral  Code,  were  not  changed  in  the  Code 
revision  of  1919. 

^The  term  "bureau"  is  used  to  refer  to  all  other  officers  of  the  legislative  body, 
e.  g.,  secretaries,  etc. 

3For  questions  requiring  a  two-thirds  vote,  see  Articles  27,  61,  62,  and  131. 


BELGIUM  505 

voce.  The  election  and  nomination  of  candidates  shall  be  by 
secret  ballot.1 

Art.  40.  Each  house  has  the  right  to  investigate  the  conduct 
of  public  affairs.3 

Art.  41.  A  proposed  law  shall  not  be  passed  by  either  of  the 
houses  unless  it  has  been  voted  upon  article  by  article. 

Art.  42.  The  houses  have  the  right  to  amend  and  to  divide 
the  articles  and  amendments  proposed. 

Art.  43.  To  present  petitions  in  person  to  the  houses  is  for- 
bidden. 

Each  house  has  the  right  to  send  to  the  ministers  the  peti- 
tions which  are  addressed  to  it.  The  ministers  are  obliged 
to  give  explanations  upon  the  contents  of  such  petitions  when- 
ever the  house  demands. 

Art.  44.  No  member  of  either  house  shall  be  arrested  or 
prosecuted  on  account  of  opinions  expressed  or  votes  cast  by  him 
in  the  performance  of  his  duties. 

Art.  45.  No  member  of  either  house  shall  during  the  con- 
tinuance of  the  session  be  prosecuted  or  imprisoned  after  trial, 
except  by  the  authority  of  the  house  of  which  he  is  a  member, 
unless  he  be  apprehended  in  the  commission  of  an  offense. 

No  member  of  either  house  shall  be  arrested  during  the  session, 
except  by  the  same  authority. 

The  detention  or  the  prosecution  of  a  member  of  either  house 
shall  be  suspended  during  the  session  and  for  the  entire  term,  if 
the  house  so  demands. 

Art.  46.  Each  house  shall  determine  by  its  own  rules  the 
manner  in  which  it  is  to  exercise  its  powers.3 

SECTION   I.    THE  HOUSE  OF  REPRESENTATIVES 

Art.  47.4  The  members  of  the  House  of  Representatives  shall 
be  elected  directly  by  citizens  who  have  reached  the  age  of  21 
years,  have  resided  for  at  least  six  months  in  the  same  commune, 
and  are  not  otherwise  excluded  by  law. 

1  Proposed  for  revision  in  1921  but  left  unchanged. 

*Law  of  May  3,  1880,  to  regulate  the  form  of  parliamentary  investigations. 

'See  F.  Moreau  et  J.  Delpech,  Lea  reglemenls  des  assemblies  legislatives.  Vol.  1. 
pp.  617  and  637  (Paris,  1906). 

4The  1921  revision  of  Article  47  struck  from  the  constitution  the  provisions  for 
plural  voting.  These  gave  one  additional  vote  (1)  to  a  citizen  35  years  of  age, 
who  was  married  or  a  widower  with  legitimate  offspring,  and  who  paid  to  the 
state  a  tax  of  not  less  than  five  francs  as  a  householder,  unless  exempt  on  account 
of  his  profession;  and  (2)  to  a  citizen,  aged  25  years,  who  owned  real  estate  valued 
at  2,000  francs,  or  had  income  from  land  corresponding  to  such  valuation,  or 
who  had  government  bonds  or  savings  bank  deposits  bearing  100  francs  interest. 
Two  additional  votes  were  allotted  citizens  possessing  certain  educational  quali- 
fications. No  one  was  allowed  more  than  three  votes.  These  were  the  pro- 
visions  under  the  amendments  of  1893. 


506  APPENDIX  I 

Each  elector  has  a  right  to  only  one  vote. 

Under  the  same  conditions,  the  right  of  suffrage  may  be  ex- 
tended to  women  by  law.  This  law  must  receive  at  least  a 
two-thirds  majority  vote. 

Transitional  provision.  Women  who,  fulfilling  the  condi- 
tions prescribed  by  this  Article,  belong  to  one  of  the  categories 
enumerated  in  Article  2  of  the  law  of  May  9,  1919,  shall  be  ad- 
mitted to  the  right  of  suffrage  concurrently  with  the  citizens 
covered  by  Article  47  of  the  constitution.1 

Art.  48.2  The  constitution  of  the  electoral  colleges  shall  be 
regulated  by  law  for  each  province. 

Elections  shall  be  held  according  to  the  system  of  proportional 
representation  determined  by  law. 

Voting  is  obligatory  and  secret.  It  shall  take  place  in  the 
commune,  when  not  otherwise  determined  by  law. 

Art.  49.3  The  number  of  representatives  shall  be  determined 
by  law,  according  to  the  population;  this  number  shall  not  ex- 
ceed the  proportion  of  one  representative  for  40,000  inhabitants. 
The  qualifications  of  an  elector  and  the  process  of  election  shall 
also  be  determined  by  law. 

Art.  50.4    To  be  eligible  it  is  necessary: 

(1)  To  be  a  Belgian  citizen  by  birth,  or  to  have  received  full 
naturalization. 

(2)  To  enjoy  civil  and  political  rights. 

(3)  To  have  reached  the  age  of  25  years. 

(4)  To  be  a  resident  of  Belgium. 


'Article  2  of  the  electoral  law  of  May  9,  1919,  reads  as  follows: 

"Art.  2.  The  following  shall  likewise  be  permitted  to  vote  at  the  next  renewal 
of  the  legislative  house,  upon  the  same  conditions  in  respect  to  nationality,  age, 
and  residence : 

"(1)  Unmarried  widows  of  soldiers  who  died  in  the  course  of  the  war  before 
January  1,  1919,  and,  in  default  of  their  voting,  the  widowed  mothers  of  such 
deceased  soldiers,  as  well  as  the  widowed  mothers  of  deceased  soldiers  who  were 
unmarried. 

"(2)  The  unmarried  widows  of  Belgian  citizens  who  were  shot  or  killed  by  the 
enemy  in  the  course  of  the  war,  and,  in  default  of  their  voting,  the  widowed 
mothers  of  such  slain  citizens,  as  well  as  the  widowed  mothers  of  slain  citizens 
who  were  unmarried. 

"(3)  Women  who  were  condemned  to  prison  or  internment  on  account  of  their 
patriotic  motives." 

2Article  48  was  amended  in  1893.  The  obligation  of  voting  was  sanctioned 
by  Article  223  of  the  Electoral  Code.  In  the  legislative  elections  -of  1900,  the 
proportion  of  absentees  averaged  6  per  cent.  The  provision  as  to  secrecy  is 
new  (1921)  and  proportional  representation  (provided  for  by  the  law  of  Decem- 
ber 29,  1899)  is  guaranteed  in  the  constitution. 

3Proposed  for  revision  in  1921  but  left  unchanged. 

4In  the  Revue  du  droit  public  edition  of  the  constitution  of  1921,  this  Article  is 
listed  among  those  subjected  to  revision.  The  only  alteration,  however,  appears 
to  be  a  minor  change  in  phraseology.  See  Dareste,  op.  cit.,  Vol.  I,  p.  81. 


BELGIUM  507 

No  other  condition  of  eligibility  shall  be  required. 

Art.  5 1.1  The  members  of  the  House  of  Representatives  shall 
be  elected  for  a  term  of  four  years. 

The  House  shall  be  renewed  every  four  years. 

Art.  52.  Each  member  of  the  House  of  Representatives  shall 
receive  an  annual  compensation  of  12,000  francs.1 

He  shall  have,  in  addition,  the  right  of  free  transportation  of 
all  state  or  concessionary  railways. 

The  means  of  transport,  apart  from  those  specified  above, 
which  Representatives  may  use  gratuitously,  shall  be  determined 
by  law. 

An  annual  indemnity  chargeable  to  the  appropriation  designed 
to  cover  the  expenses  of  the  House  of  Representatives  may  be 
allowed  the  President  of  that  assembly. 

The  House  shall  determine  the  amount  that  may  be  withheld 
from  the  indemnity  for  contribution  to  the  retirement  or  pen- 
sion funds  that  it  may  deem  proper  to  establish. 

Transitional  provision.  The  provision  of  Article  52,  clause  1, 
shall  be  applicable  to  the  session  of  1919-1920.3 

SECTION   H.    THE   SENATE 

Art.  53.4     The  Senate  shall  be  composed: 

(1)  Of  members  elected  in  proportion  to  the  population  of 
each  province,  conformably  to  Article  47.     The  provisions  of 
Article  48  are  applicable  to  the  election  of  these  Senators. 

(2)  Of  members  elected  by  the  provincial  councils,  in  the 
proportion  of  one  senator  for  200,000  inhabitants.     Any  excess 
of  at  least  125,000  inhabitants  shall  entitle  the  province  to  one 
additional  Senator.     Nevertheless,  each  provincial  council  shall 
name  at  least  three  Senators. 

(3)  Of  members  elected  by  the  Senate  with  the  concurrence 
of  half  the  number  of  Senators  elected  by  the  provincial  councils. 
If  this  number  is  odd,  it  shall  be  increased  by  one  unit. 

These  members  are  chosen  by  the  Senators  elected  by  the 
application  of  clauses  1  and  2  of  this  Article. 

JThe  provision  before  1921  was  that  one-half  of  the  House  of  Representatives 
should  be  elected  every  two  years  and  that  in  case  of  dissolution  the  House 
should  be  entirely  renewed. 

"Increased  in  1921  from  4,000  francs.  The  right  to  free  railway  transporta- 
tion is  now  not  limited  to  journeys  from  the  place  of  the  deputy's  residence  to 
the  city  where  the  session  is  held. 

'The  last  four  clauses  of  Article  52  were  added  in  1921. 

*The  method  of  electing  the  Senate,  as  provided  by  the  revision  of  1921,  is 
almost  entirely  new.  Suffrage  qualifications  are  changed;  there  is  a  new  ap- 
portionment of  members  elected  by  provincial  councils,  and  a  new,  third  group, 
of  Senators  is  to  be  coopted.  The  election  of  Senators  by  the  provincial 
councils  was  an  innovation  of  1893. 


508  APPENDIX  I 

The  election  of  Senators  elected  by  the  application  of 
clauses  2  and  3  shall  take  place  according  to  the  system  of  pro- 
portional representation  determined  by  law. 

Transitional  provision.  Women  granted  the  right  to  vote  for 
the  House  of  Representatives,  concurrently  with  the  citizens 
referred  to  in  Article  47  of  the  constitution,  shall  be  permitted 
likewise  to  participate  in  the  election  of  members  of  the  Senate 
referred  to  in  Article  53,  clause  1. 

Art.  54. :  The  number  of  Senators  to  be  elected  directly  by 
voters  shall  be  equal  to  one-half  the  number  of  members  of  the 
House  of  Representatives. 

Art.  55.2     Senators  shall  be  elected  for  a  term  of  four  years. 

The  Senate  shall  be  entirely  renewed  every  four  years. 

Art.  56.3     In  order  to  be  elected  Senator,  it  shall  be  necessary : 

(1)  To  be  a  Belgian  citizen  by  birth,  or  to  have  received  full 
naturalization. 

(2)  To  enjoy  civil  and  political  rights. 

(3)  To  be  a  resident  of  Belgium. 

(4)  To  be  at  least  40  years  of  age. 

Art.  56A.4  To  be  eligible  to  be  elected  Senator  by  the  appli- 
cation of  clause  1  of  Article  53,  it  is  necessary,  moreover,  to  be- 
long to  one  of  the  following  categories : 

(1)  Ministers,  former  ministers,  and  ministers  of  state. 

(2)  Members  and  former  members  of  the  House  of  Represen- 
tatives and  of  the  Senate. 

(3)  Those  possessing  a  diploma  for  completion  of  studies 
granted  by  one  of  the  institutions  of  higher  learning,  the  list  of 
which  shall  be  determined  by  law. 

(4)  Former  superior  officers  of  the  army  and  navy. 

JAs  amended  in  1893.     Proposed  for  revision  in  1921  but  left  unchanged. 

IUnder  the  1893  provisions  Senators  were  elected  for  eight  years,  one-half 
being  elected  every  four  years.  In  case  of  dissolution  the  whole  Senate  was 
renewed. 

3In  the  1893  revision  this  Article  included  a  fifth  paragraph  imposing  the  prop- 
erty qualification  which  is  now  (the  tax  of  1,200  francs  being  increased  to  3,000 
francs)  clause  13  of  Article  56A.  The  increased  number  of,  categories  made 
unnecessary  the  following  provision  that  appeared  in  the  1893  constitution: 
"  In  the  provinces  where  the  number  of  those  eligible  does  not  reach  the  propor- 
tion of  one  for  every  5,000  inhabitants,  the  list  shall  be  completed  by  the  addi- 
tion of  as  many  of  the  highest  taxpayers  of  the  province  as  may  be  necessary 
to  make  this  proportion.  The  citizens  on  this  supplementary  fist  are  eligible 
only  in  the  province  where  they  reside." 

fArts.  56A,  56B,  and  56C,  which  are  articles  added  by  the  revisions  of  1893 
and  1921,  are,  in  the  French,  designated,  "56  bis,"  "56  ter,"  and  "56  quater." 

Art.  56A  in  the  old  constitution  read  as  follows:  "The  Senators  elected  by  the 
provincial  councils  shall  be  exempt  from  all  property  qualification;  they  shall  not 
be  members  of  the  assembly  which  elects  them,  nor  have  been  members  of  it 
during  the  year  of  the  election  nor  during  the  two  preceding  years."  In  a  modi- 
fied form  this  is  now  Article  56B.  Article  56C  is  new. 


BELGIUM  509 

(5)  Titular  members  and  former  members  of  the  commerce 
courts  who  have  been  invested  with  at  least  two  commissions. 

(6)  Those  who  have,  for  at  least  ten  years,  exercised  the 
functions  of  a  minister  of  one  of  the  religions  whose  members 
enjoy  emoluments  from  the  state. 

(7)  Titular  members  and  former  members  of  one  of  the  royal 
academies,  and  professors  and  former  professors  of  one  of  the  in- 
stitutions of  higher  learning,  the  list  of  which  shall  be  determined 
by  law. 

(8)  Former  provincial  governors;  members  and  former  mem- 
bers of  permanent  deputations;  former  commissioners  of  an 
arrondissement. 

(9)  Members  and  former  members  of  provincial  councils  who 
have  been  invested  with  at  least  two  commissions. 

(10)  Burgomasters  and  former  burgomasters,  aldermen  and 
former  aldermen  of  communes,  of  capitals  of  arrondissements, 
and  of  places  having  more  than  4,000  inhabitants. 

(11)  Former  Governors-General  and  Vice-Governors-General 
of  the  Belgian  Congo,  members  and  former  members  of  the  Co- 
lonial Council. 

(12)  Former  directors-general,  directors,  and  inspectors-gen- 
eral of  the  different  departments. 

(13)  Proprietors  and  usufructuaries  of  real  estate  situated  in 
Belgium  the  assessed  income  of  which  amounts  to  at  least  12,000 
francs;  taxpayers  paying  annually  into  the  treasury  of  the  state 
at  least  3,000  francs  in  direct  taxes. 

(14)  Those  who,  in  the  capacity  of  delegated  administrator, 
director,  or  with  an  analogous  title,  have  been  placed  for  five 
years  at  the  head  of  the  daily  management  of  a  Belgian  commer- 
cial joint-stock  society,  whose  capital  is  paid  up  to  the  amount 
of  at  least  a  million  francs. 

(15)  Chiefs  of  industrial  enterprises  employing,  on  a  perma- 
nent basis,  at  least  100  workmen  and  of  agricultural  enterprises 
including  at  least  100  acres. 

(16)  Those  who,  in  the  capacity  of  managing  director  or  with 
an  analogous  title,  have  been  placed  for  three  years  at  the  head 
of  the  daily  management  of  a  Belgian  cooperative  society  num- 
bering for  the  last  five  years  at  least  500  members. 

(17)  Those  who,  in  the  capacity  of  effective  members,  have 
exercised  for  five  years  the  functions  of  president  or  secretary 
of  a  mutual  society  or  a  mutual  federation,  numbering  for  the 
last  five  years  at  least  1,000  members. 

(18)  Those  who,  in  the  capacity  of  effective  members,  have 
exercised  for  five  years  the  functions  of  president  or  secretary 
of  a  professional,  industrial,  or  agricultural  association,  including 
for  the  last  five  years  at  least  500  members. 


510  APPENDIX  I 

(19)  Those  who  for  five  years  have  exercised  the  functions 
of  president  of  a  chamber  of  commerce  or  of  industry,  numbering 
for  the  last  five  years  at  least  300  members. 

(20)  Members  of  industrial  and  labor  councils,  provincial 
agricultural  commissions,  and  councils  of  experts  who  have  been 
invested  with  at  least  two  commissions. 

(21)  Elected  members  of  one  of  the  consultative  councils  es- 
tablished in  connection  with  ministerial  departments. 

New  categories  of  eligibles  may  be  created  by  a  law,  which 
must  receive  at  least  a  two-thirds  majority  vote. 

Transitional  provision.  The  term  of  five  years  in  the  cate- 
gories numbered  14,  17,  18,  and  19  and  that  of  three  years  in 
category  numbered  16  are  reduced  to  two  years  for  the  first 
application  of  these  provisions. 

Art.  56B.  Senators  elected  by  provincial  councils  may  not 
belong  to  the  assembly  which  elects  them,  nor  may  they  have 
been  members  of  it  during  the  year  of  election  or  the  two  pre- 
ceding years. 

Art.  56C.  In  case  of  a  dissolution  of  the  Senate,  the  King  may 
dissolve  the  provincial  councils. 

The  act  of  dissolution  shall  include  the  convocation  of  the  pro- 
vincial electors  within  forty  days  and  of  the  provincial  councils 
within  two  months. 

Art.  57.     Senators  shall  not  receive  a  salary. 

They  have  the  right,  nevertheless,  to  be  indemnified  for  their 
expenses ;  this  indemnity  is  fixed  at  4,000  francs  a  year.1 

They  have  the  right,  moreover,  of  free  transportation  on  all 
state  and  concessionary  railways. 

The  means  of  transport,  apart  from  those  specified  above, 
which  they  may  use  gratuitously,  shall  be  determined  by  law. 

Art.  58.2  The  sons  of  the  King,  or  if  there  be  none,  the 
Belgian  princes  of  the  branch  of  the  royal  family  designated  to 
succeed  to  the  throne,  shall  be  by  right  Senators  at  the  age  of  18 
years.  They  shall  have  no  deliberate  vote  until  the  age  of  25. 

Art.  59.3  Every  meeting  of  the  Senate  which  may  be  held  at 
any  other  time  than  during  the  session  of  the  House  of  Repre- 
sentatives shall  be  null  and  void. 

CHAPTER  II.    THE  KING  AND  THE  MINISTERS 
SECTION  I.   THE  KING 

Art.  60.4  The  constitutional  powers  of  the  King  are  heredi- 
tary in  the  direct  descendants,  natural  and  legitimate,  of  His 

1Prior  to  1921  no  grant  for  expenses  was  allowed. 
*As  amended  September  7,  1893. 
'Proposed  for  revision  in  1921  but  left  unchanged. 
Paragraphs  2  and  3  were  added  September  7,  1893. 


BELGIUM  511 

Majesty  Leopold  George  Christian  Frederick  of  Saxe-Coburg 
from  male  to  male,  in  the  order  of  primogeniture,  and  to  the  per- 
petual exclusion  of  females  and  of  their  descendants. 

The  prince  who  shall  marry  without  the  consent  of  the  King, 
or  of  those  who  in  his  absence  exercise  his  authority  as  provided 
by  the  constitution,  shall  forfeit  his  rights  to  the  crown. 

Nevertheless,  with  the  consent  of  the  two  houses,  he  may  be 
relieved  of  this  forfeiture  by  the  King  or  by  those  who,  in  his  ab- 
sence, exercise  his  authority  according  to  the  constitution. 

Art.  61  -1  In  default  of  male  descendants  of  His  Majesty  Leo- 
pold George  Christian  Frederick  of  Saxe-Coburg,  the  King  may 
name  his  successor,  with  the  consent  of  the  houses  expressed  in 
the  manner  prescribed  by  the  following  article. 

If  no  nomination  has  been  made  after  the  manner  described 
below,  the  throne  will  be  vacant. 

Art.  62.  The  King  shall  not  at  the  same  time  be  the  head  of 
another  state,  without  the  consent  of  the  two  houses.2 

Neither  of  the  houses  shall  deliberate  upon  this  matter  unless 
two-thirds,  at  least,  of  the  members  who  compose  it  are  present, 
and  the  resolution  must  be  adopted  by  at  least  two-thirds  of  the 
votes  cast. 

Art.  63.  The  person  of  the  King  is  inviolable;  his  ministers 
are  responsible. 

Art.  64.  No  decree  of  the  King  shall  take  effect  unless  it  is 
countersigned  by  a  minister,  who,  by  that  act  alone,  renders 
himself  responsible  for  it. 

Art.  65.     The  King  appoints  and  dismisses  his  ministers. 

Art.  66.     He  confers  the  grades  in  the  army.3 

He  appoints  the  officers  of  the  general  administration  and  for 
foreign  relations,  except  as  otherwise  established  by  law. 

He  appoints  other  governmental  officials  only  by  virtue  of  an 
express  provision  of  law. 

Art.  67.  He  shall  issue  all  regulations  and  decrees  necessary 
for  the  execution  of  the  laws,  without  power  to  suspend  the  laws 
themselves,  or  to  dispense  with  their  execution. 

Art.  68.  The  King  commands  the  forces  both  by  land  and 
sea,  declares  war,  makes  treaties  of  peace,  of  alliance,  and  of 
commerce.  He  shall  give  information  to  the  two  houses  of  these 
acts  as  soon  as  the  interests  and  safety  of  the  state  permit,  adding 
thereto  suitable  comments. 

Treaties  of  commerce,  and  treaties  which  may  burden  the 

'As  amended  September  7, 1893.     Only  the  form  of  this  article  was  changed. 

*King  Leopold  II  was  authorized  by  the  House  of  Representatives  (April  28, 
1885)  and  the  Senate  (April  30,  1885)  to  be  the  sovereign  of  the  Congo  Free 
State. 

'See  below,  Article  124. 


512  APPENDIX  I 

state,  or  bind  Belgians  individually,  shall  take  effect  only  after 
having  received  the  approval  of  the  two  houses. 

No  cession,  exchange,  or  addition  of  territory  shall  take  place 
except  by  virtue  of  a  law.  In  no  case  shall  the  secret  articles  of 
a  treaty  be  destructive  of  those  openly  expressed. 

Art.  69.     The  King  approves  and  promulgates  the  laws.1 

Art.  70.  The  houses  shall  assemble  each  year,  the  second 
Tuesday  in  November,  unless  they  shall  have  been  previously 
summoned  by  the  King. 

The  houses  shall  remain  in  session  at  least  40  days  each  year. 

The  King  pronounces  the  closing  of  the  session. 

The  King  shall  have  the  right  to  convene  the  houses  in  ex- 
traordinary session. 

Art.  71.  The  King  shall  have  the  right  to  dissolve  the  houses 
either  simultaneously  or  separately.  The  act  of  dissolution 
shall  order  a  new  election  within  40  days,  and  summon  the 
houses  within  two  months. 

Art.  72.  The  King  may  adjourn  the  houses.  In  no  case  shall 
the  adjournment  exceed  the  term  of  one  month,  nor  shall  it  be 
renewed  in  the  same  session,  without  the  consent  of  the  houses. 

Art.  73.  He  shall  have  the  right  to  remit  or  reduce  the  penal- 
ties pronounced  by  the  judges  of  courts,  except  such  as  are  fixed 
by  law  in  the  case  of  ministers. 

Art.  74.  He  shall  have  the  right  to  coin  money,  in  accordance 
with  the  law. 

Art.  75.  He  shall  have  the  right  to  confer  titles  of  nobility, 
but  without  the  power  of  attaching  to  them  any  privilege. 

Art.  76.  He  may  confer  military  orders  in  accordance  with 
the  provisions  of  the  law. 

Art.  77.  The  civil  list  shall  be  fixed  by  law  for  the  duration  of 
each  reign.2 

Art.  78.  The  King  shall  have  no  other  powers  than  those 
which  the  constitution  and  the  special  laws,  enacted  under  the 
constitution,  formally  confer  upon  him. 

Art.  79.  At  the  death  of  the  King  the  houses  shall  assemble 
without  a  summons,  at  the  latest  on  the  tenth  day  after  his  de- 
cease. If  the  houses  shall  have  been  previously  dissolved,  and 
if  in  the  act  of  dissolution  the  reassembling  had  been  fixed  for  a 
day  later  than  the  tenth  day,  the  former  members  shall  resume 
their  duties  until  the  assembling  of  those  who  should  replace 
them. 

If  only  one  house  shall  have  been  dissolved,  the  same  rule 
shall  be  followed  with  regard  to  that  house. 

JLaw  of  April  18,  1898.     Proposed  for  revision  in  1921  but  left  unchanged. 

*The  civil  list  of  the  present  King,  Albert,  was  fixed  by  law  of  December  30, 
1909,  at  3,300,000  francs. 


BELGIUM 

From  the  date  of  the  death  of  the  King  and  until  the  taking  of 
the  oath  by  his  successor  to  the  throne,  or  by  the  agent,  the  con- 
stitutional powers  of  the  King  shall  be  exercised,  in  the  name  of 
the  Belgian  people,  by  the  ministers  united  in  council  and  upon 
their  responsibility. 

Art.  80.  The  King  is  of  age  when  he  shall  have  completed  the 
age  of  18  years. 

He  shall  not  take  possession  of  the  throne  until  he  shall  have 
solemnly  taken,  before  the  united  houses,  the  following  oath : 

"I  swear  to  observe  the  constitution  and  the  laws  of  the 
Belgian  people,  to  maintain  the  national  independence  and 
the  integrity  of  the  territory." 

Art.  81.  If,  at  the  death  of  the  King,  his  successor  is  a  minor, 
the  two  houses  shall  unite  in  one  assembly,  for  the  purpose  of 
providing  for  the  regency  and  guardianship. 

Art.  82.  If  the  King  becomes  incapacitated  to  reign,  the 
ministers,  after  having  ascertained  this  incapacity,  shall  im- 
mediately convene  the  houses.  The  houses  shall  provide  for 
the  regency  and  guardianship. 

Art.  83.     The  regency  shall  be  conferred  upon  one  person. 

The  regent  shall  enter  upon  his  duties  only  after  having  taken 
the  oath  prescribed  by  Article  80. 

Art.  84.  No  change  in  the  constitution  shall  be  made  during 
a  regency. 

Art.  85.  In  case  there  is  a  vacancy  of  the  throne,  the  houses 
deliberating  together  shall  arrange  provisionally  for  the  regency, 
until  the  first  meeting  of  the  houses  after  they  have  been  wholly 
renewed.  That  meeting  shall  take  place  at  the  latest  within  two 
months.  The  new  houses  deliberating  together  shall  provide 
definitely  for  the  vacancy. 

SECTION  H.      THE  MINISTERS 

Art.  86.  No  person  shall  be  a  minister  unless  he  is  a  Belgian 
by  birth,  or  has  received  full  naturalization. 

Art.  87.     No  member  of  the  royal  family  shall  be  a  minister. 

Art.  88.  Ministers  shall  have  no  deliberative  vote  in  either 
house  unless  they  are  members  of  it. 

They  shall  have  admission  to  either  house,  and  are  entitled  to 
be  heard  when  they  so  request. 

The  houses  shall  have  the  right  to  demand  the  presence  of 
ministers. 

Art.  89.  In  no  case  shall  the  verbal  or  written  order  of  the 
King  relieve  a  minister  of  responsibility. 

Art.  90.  The  House  of  Representatives  shall  have  the  right 
to  accuse  ministers  and  to  arraign  them  before  the  Court  of 
Cassation,  which,  sitting  in  full  bench,  alone  shall  have  the  right 


514  APPENDIX  I 

to  judge  them,  except  in  such  matters  as  shall  be  established  by 
law  respecting  a  civil  suit  by  an  aggrieved  party  and  respecting 
crimes  and  misdemeanors  committed  by  ministers  when  not  in 
the  performance  of  their  official  duties. 

The  law  shall  determine  the  responsibility  of  ministers,  the 
penalties  to  be  imposed  upon  them,  and  the  method  of  pro- 
ceeding against  them,  whether  upon  accusation  made  by  the 
House  of  Representatives  or  upon  prosecution  by  the  aggrieved 
parties.1 

Art.  91.  The  King  shall  not  have  power  to  grant  pardon  to 
a  minister  sentenced  by  the  Court  of  Cassation  except  upon 
request  of  one  of  the  two  houses. 

CHAPTER  III.      THE  JUDICIAL  POWER 

Art.  92.  Actions  which  involve  questions  of  civil  right  belong 
exclusively  to  the  jurisdiction  of  the  courts. 

Art.  93.  Actions  which  involve  questions  of  political  rights 
belong  to  the  jurisdiction  of  the  courts,  except  as  otherwise  de- 
termined by  law. 

Art.  94.  No  tribunal  nor  contentious  jurisdiction  shall  be 
established  except  by  virtue  of  a  law.2  No  commissions  or  ex- 
traordinary tribunals  under  any  title  whatever  shall  be  estab- 
lished. 

Art.  95.3  There  shall  be  a  Court  of  Cassation  for  the  whole  of 
Belgium. 

This  court  shall  not  consider  questions  of  fact  except  in  the 
trial  of  ministers. 

Art.  96.  The  sessions  of  the  courts  shall  be  public,  unless  this 
publicity  is  declared  by  a  judgment  of  the  court  to  be  dangerous 
to  public  order  or  morals. 

In  cases  of  political  offenses  and  offenses  of  the  press  closed 
doors  shall  be  enforced  only  by  a  unanimous  vote  of  the  court. 

Art.  97.  Every  judgment  shall  be  pronounced  in  open  court, 
and  the  reasons  therefor  stated. 

Art.  98.  The  right  of  trial  by  jury  shall  be  established  in  all 
criminal  cases  and  for  all  political  offenses  and  offenses  of  the 
press. 

Art.  99.  The  justices  of  the  peace  and  the  judges  of  courts 
shall  be  appointed  directly  by  the  King. 

The  members  of  the  courts  of  appeal  and  the  presidents  and 
vice-presidents  of  the  courts  of  original  jurisdiction  shall  be 


1See  below,  Article  134. 

*Law  of  June  18,  1869, 
J79. 

'Clause  1  proposed  for  revision  in  1921  but  left  unchanged. 


*Law  of  June  18,  1869,  on  the  organization  of  the  judiciary,  amended  April  1, 
1879. 


BELGIUM  515 

appointed  by  the  King  from  two  double  lists,  presented  the  one 
by  these  courts  and  the  other  by  the  provincial  councils. 

The  members  of  the  Court  of  Cassation  shall  be  appointed  by 
the  King  from  two  double  lists  presented  one  by  the  Senate  and 
one  by  the  Court  of  Cassation. 

In  both  cases  the  candidates  named  upon  one  list  may  be 
named  also  upon  the  other. 

All  the  names  shall  be  published  at  least  fifteen  days  before 
the  appointment. 

The  courts  shall  choose  their  presidents  and  vice-presidents 
from  among  their  own  number. 

Art.  100.     Judges  shall  be  appointed  for  life. 

No  judge  shall  be  deprived  of  his  office  or  suspended  until 
after  trial  and  judgment. 

The  removal  of  a  judge  from  one  place  to  another  shall  take 
place  only  by  means  of  a  new  appointment  and  with  his  consent. 

Art.  101.  The  King  appoints  and  removes  the  state  officials 
serving  in  the  courts  and  tribunals. 

Art.  102.  The  salaries  of  the  members  of  the  judiciary  shall 
be  fixed  by  law. 

Art.  103.  No  judge  shall  accept  from  the  government  any 
salaried  office,  unless  he  perform  the  duties  thereof  gratuitously, 
and  not  then  if  it  is  contrary  to  the  law  of  incompatibility.1 

Art.  104.2    There  shall  be  three  courts  of  appeal  in  Belgium. 

Their  jurisdiction  and  the  places  where  they  shall  be  held  shall 
be  determined  by  law. 

Art.  105.3  Special  laws  shall  govern  the  organization  of  mili- 
tary tribunals,  their  powers,  the  rights  and  obligations  of  the 
members  of  these  tribunals  and  the  duration  of  their  functions. 

There  shall  be  commercial  courts  in  places  which  shall  be 
designated  by  law.  Their  organization,  powers,  the  method  of 
appointment  of  their  members,  and  the  duration  of  their  term 
of  office  shall  also  be  determined  by  law. 

Art.  106.  The  Court  of  Cassation  shall  decide  conflicts  of 
jurisdiction,  according  to  the  method  prescribed  by  law. 

Art.  107.  The  courts  and  tribunals  shall  enforce  executive 
decrees  and  ordinances,  whether  general,  provincial,  or  local, 
only  so  far  as  they  shall  conform  to  the  laws. 

CHAPTER  IV.      PROVINCIAL  AND  COMMUNAL  INSTITUTIONS 

Art.  108.  Provincial  and  communal  institutions  shall  be 
regulated  by  law. 


1Laws  of  May  26,  1848,  and  June  18,  1869. 

'Law  of  June  15,  1909. 

'Proposed  for  revision  in  1921  but  left  unchanged. 


516  APPENDIX  I 

The  law  shall  establish  the  application  of  the  following  princi- 
ples: 

(1)  Direct  election,  except  in  the  cases  which  may  be  estab- 
lished by  law  with  regard  to  the  chiefs  of  the  communal  adminis- 
tration and  government  commissioners  acting  in  the  provincial 
councils. 

(2)  The  relegation  to  provincial  and  communal  councils  of 
all  provincial  and  communal  affairs,  without  prejudice  to  the  ap- 
proval of  their  acts,  in  the  cases  and  according  to  the  procedure 
determined  by  law. 

Several  provinces  or  several  communes  may  act  in  concert  or 
associate  together  under  the  conditions  and  according  to  the 
manner  to  be  determined  by  law,  in  order  to  regulate  and  man- 
age in  common  subjects  of  provincial  or  communal  interest. 
Nevertheless,  several  provincial  councils  or  several  communal 
councils  may  not  be  permitted  to  deliberate  in  common.1 

(3)  The  publicity  of  the  sittings  of  the  provincial  and  com- 
munal councils  within  the  limits  established  by  law. 

(4)  The  publicity  of  budgets  and  of  accounts. 

(5)  The  intervention  of  the  King  or  of  the  legislative  power  to 
prevent  provincial  and  communal  councils  from  exceeding  their 
powers  and  from  acting  against  the  general  welfare. 

Art.  109.  The  keeping  of  the  civil  register  is  exclusively  the 
duty  of  the  communal  authorities. 

TITLE  IV.    FINANCES 

Art.  110.  No  tax  for  the  benefit  of  the  state  shall  be  imposed 
except  by  law. 

No  provincial  charge  or  tax  shall  be  imposed  without  the  con- 
sent of  the  provincial  council. 

No  communal  charge  or  tax  shall  be  imposed  without  the 
consent  of  the  communal  council. 

The  law  shall  determine  the  exceptions  which  experience  shall 
show  to  be  necessary  in  regard  to  provincial  and  communal 
taxes. 

Art.  111.  Taxes  for  the  benefit  of  the  state  shall  be  voted 
annually. 

The  laws  which  impose  such  taxes  shall  remain  in  force  for 
one  year  only  unless  they  are  reenacted. 

Art.  112.  No  privilege  shall  be  established  with  regard  to 
taxes. 

No  exemption  or  abatement  of  taxes  shall  be  established  ex- 
cept by  law. 


paragraph,  authorizing  joint  administration,  was  inserted  by  the  1921 
revision. 


BELGIUM  517 

Art.  113.  Beyond  the  cases  expressly  excepted  by  law,  no 
payment  shall  be  exacted  of  any  citizen  other  than  taxes  levied 
for  the  benefit  of  the  state,  of  the  province,  or  of  the  commune. 
No  change  shall  be  made  in  the  existing  system  of  polders1  and 
wateringen*  which  remain  subject  to  ordinary  legislation. 

Art.  114.  No  pension  or  gratuity  shall  be  paid  out  of  the 
public  treasury  without  the  authority  of  law. 

Art.  115.  Each  year  the  houses  shall  enact  the  law  of  ac- 
counts and  vote  the  budget. 

All  the  receipts  and  expenditures  of  the  state  shall  be  con- 
tained in  the  budget  and  in  the  accounts. 

Art.  116.  The  members  of  the  Court  of  Accounts  shall  be  ap- 
pointed by  the  House  of  Representatives  and  for  a  term  fixed  by 
law. 

This  court  shall  be  entrusted  with  the  examination  and  settle- 
ment of  the  accounts  of  the  general  administration  and  of  all 
persons  accountable  to  the  public  treasury.  It  shall  see  that  no 
item  of  the  expenditures  of  the  budget  is  overdrawn  and  that  no 
transfer  takes  place.  It  shall  audit  the  accounts  of  the  different 
administrative  organs  of  the  state,  and  shall  gather  for  this  pur- 
pose all  information  and  all  necessary  vouchers.  The  general 
accounts  of  the  state  shall  be  submitted  to  the  House  with  the 
comments  of  the  Court  of  Accounts. 

This  court  shall  be  organized  by  a  law.8 

Art.  117.  The  salaries  and  pensions  of  the  ministers  of  reli- 
gion shall  be  paid  by  the  state;  the  sums  necessary  to  meet  this 
expenditure  shall  be  entered  annually  in  the  budget.4 

TITLE  V.    THE  PUBLIC  FORCE 

Art.  118.  The  method  of  recruiting  the  army  shall  be  de- 
termined by  law.  The  laws  shall  also  regulate  the  promotion, 
the  rights,  and  the  duties  of  soldiers.6 

holders  are  lands  reclaimed  from  the  sea  by  dikes.  The  owners  of  these  lands 
are  grouped  into  associations  for  the  maintenance  of  the  dikes  and  are  required 
by  law  to  bear  the  expense  of  such  maintenance. 

Wateringen  are  associations  formed  for  the  purpose  of  irrigating  and  draining 
lands  reclaimed  from  the  sea.  They  have  power  to  raise  funds  by  taxing  the 
lands  affected  by  such  improvements. 

'Law  of  October  29, 1846. 

4  This  clause  is  interpreted  to  apply  only  to  the  denominations  recognized  by 
law  in  Belgium  in  1830;  these  are  the  Catholic,  Protestant  Evangelical,  Anglican, 
and  Jewish;  almost  the  whole  of  the  Belgian  population  is  Catholic.  No  minis- 
ter is  entitled  to  a  salary  (1)  if  he  must  receive  license  from  a  person  practicing  a 
profession  without  legal  authorization,  (2)  if,  being  a  foreigner,  he  performs  the 
ministerial  functions  without  the  permission  of  the  government. 

•The  organization  of  the  Belgian  Army  is  governed  by  the  Laws  of  April  5, 
1868,  June  3,  1870,  August  16,  1873,  and  March  21,  1902. 


518  APPENDIX  I 

Art.  119.  The  army  contingent  shall  be  voted  annually. 
The  law  which  fixes  it  shall  remain  in  force  for  one  year  only,  un- 
less reenacted. 

Art.  120.  The  organization  and  the  attributions  of  the  armed 
police  shall  be  regulated  by  a  law. 

Art.  121.  No  foreign  troops  shall  be  admitted  into  the  ser- 
vice of  the  state,  to  occupy  or  to  cross  its  territory  except  by 
virtue  of  a  law. 

Art.  122.  There  shall  be  a  citizen  militia,  the  organization  of 
which  shall  be  regulated  by  law. 

[The  offices  of  all  grades,  at  least  as  high  as  that  of  captain, 
shall  be  chosen  by  the  militia,  with  such  exceptions  as  may  be 
judged  necessary  for  accountants.]1 

[Art.  123.  The  militia  shall  not  be  brought  into  active  ser- 
vice except  by  virtue  of  a  law]  .2 

Art.  124.  Soldiers  shall  not  be  deprived  of  their  grades,  hon- 
ors, or  pensions  except  in  the  manner  prescribed  by  law. 

TITLE  VI.    GENERAL  PROVISIONS 

Art.  125.  The  Belgian  nation  adopts  for  its  colors,  red, 
yellow,  and  black,  and  for  the  coat  of  arms  of  the  Kingdom,  the 
Belgian  lion,  with  the  motto,  "Union  Gives  Strength." 

Art.  126.  The  city  of  Brussels  is  the  capital  of  Belgium  and 
the  seat  of  government. 

Art.  127.  No  oath  shall  be  imposed  except  by  virtue  of  law. 
The  form  of  the  oath  shall  also  be  determined  by  law. 

Art.  128.  Every  foreigner  within  the  territory  of  Belgium 
shall  enjoy  protection  of  his  person  and  property,  except  as 
otherwise  established  by  law. 

Art.  129.  No  law,  ordinance,  or  regulation  of  the  general, 
provincial,  or  communal  government  shall  be  obligatory  until 
after  having  been  published  in  the  manner  prescribed  by  law. 

Art.  130.  The  constitution  shall  not  be  suspended,  either  in 
whole  or  in  part. 

TITLE  VII.    THE  REVISION  OF  THE  CONSTITUTION 

Art.  131. 3  The  legislative  power  has  the  right  to  declare  that 
a  revision  of  such  constitutional  provisions  as  it  shall  designate 
is  in  order. 

After  this  declaration,  the  two  houses  are  ipso  facto  dissolved. 


irThis  paragraph  was  stricken  out  by  the  1921  revision. 

'Article  123  was  stricken  out  by  the  1921  revision; 
ere  not  renumbered. 

'Proposed  for  revision  in  1921  but  left  unchanged. 


'Article  123  was  stricken  out  by  the  1921  revision;  but  the  succeeding  articles 
were  not  renumbered. 


BELGIUM  519 

Two  new  houses  shall  then  be  summoned,  in  conformity  with 
Article  71. 

These  houses,  with  the  approval  of  the  King,  shall  then  act 
upon  the  points  submitted  for  revision. 

In  this  case  the  houses  shall  not  deliberate  unless  at  least  two- 
thirds  of  the  members  of  each  are  present,  and  no  amendment 
shall  be  adopted  unless  it  is  supported  by  at  least  two-thirds  of 
the  votes. 

TITLE  VIII.    TRANSITIONAL  PROVISIONS 

Art.  132.  For  the  first  choice  of  a  head  of  the  state  the  first 
provision  of  Article  80  may  be  neglected. 

Art.  133.  Foreigners  established  in  Belgium  before  January  1, 
1814,  and  who  continue  to  reside  therein,  shall  be  considered 
Belgians  by  birth,  upon  condition  that  they  declare  their  in- 
tention to  take  advantage  of  this  provision. 

Such  declaration  shall  be  made  within  six  months  after  this 
constitution  goes  into  effect,  if  the  foreigners  are  of  age,  and  if 
they  are  minors,  within  the  year  after  attaining  their  majority. 

This  declaration  shall  be  made  before  the  provincial  authority 
of  the  province  where  they  reside. 

It  shall  be  made  in  person  or  by  an  agent  having  a  special  and 
authentic  authorization. 

Art.  134.  Until  further  provision  by  law,  the  House  of  Rep- 
resentatives shall  have  discretionary  power  to  accuse  a  minister, 
and  the  Court  of  Cassation  to  try  him,  find  the  offense,  and  fix 
the  penalty. 

Nevertheless  the  penalty  shall  not  extend  farther  than  removal 
from  office,  without  prejudice  to  the  cases  expressly  provided  for 
by  the  penal  laws.1 

Art.  135.  The  personnel  of  the  courts  shall  be  maintained  as 
it  now  exists,  until  further  provision  has  been  made  by  law. 

Such  a  law  shall  be  enacted  during  the  first  legislative  session. 

Art.  136.  A  law,  passed  during  the  first  legislative  session, 
shall  provide  for  the  manner  of  the  first  nomination  of  members 
of  the  Court  of  Cassation.2 

Art.  137.  The  fundamental  law  of  August  24,  1815,  and  the 
provincial  and  local  statutes  are  abolished.  However,  the  pro- 
vincial and  local  authorities  shall  retain  their  powers  until  a  law 
shall  make  other  provision. 

Art.  138.  As  soon  as  this  constitution  goes  into  effect,  all 
laws,  decrees,  orders,  regulations,  and  other  instruments  con- 
trary thereto  are  abrogated. 

JThis  transitional  legislation  is  still  in  force,  no  organic  law  having  determined 
the  cases  of  Ministerial  responsibility. 

zArticle  99  provides  for  subsequent  appointments. 


520  APPENDIX  I 

SUPPLEMENTARY  PROVISIONS 

Art.  139.  The  National  Congress  declares  that  it  is  necessary 
to  provide  for  the  following  objects,  by  separate  laws  and  as  soon 
as  possible: 

1.  The  press.1 

2.  The  organization  of  the  jury.2 

3.  The  finances.3 

4.  Provincial  and  communal  organization.4 

5.  The  responsibility  of  ministers6  and  of  other  officers. 

6.  The  judicial  organization.6 

7.  The  revision  of  the  pension  list. 

8.  Measures  proper  to  prevent  the  abuse  of  cumulative  office- 
holding. 

9.  The  revision  of  the  laws  of  bankruptcy  and  of  suspension. 

10.  The  organization  of  the  army,  the  rights  of  advancement 
and  of  retirement,  and  the  military  penal  code.7 

11.  The  revision  of  the  codes. 

The  executive  power  is  charged  with  the  execution  of  the 
present  decree. 

JDecree  of  July  20,  1831,  amended  by  the  Penal  Code  in  many  of  its  provisions. 

2See  above,  Article  94. 

3Law  of  May  15,  1846,  on  the  compatibility  of  the  state. 

4See  above,  Article  108. 

8See  above,  Article  134. 

•See  above,  Article  94. 

'Military  Penal  Code  of  May  27,  1870.    See  above,  Article  118. 


APPENDIX  II 
FRANCE 

1.  HISTORICAL  NOTE 

"Since  1789  France  has  undergone  numerous  changes  in  gov- 
ernment, and  each  change  has  been  embodied  in  constitutional 
documents.  It  will  suffice  here  to  enumerate  the  several  con- 
stitutions which  were  in  force  before  the  definite  establishment 
of  the  Third  Republic: 

"1.  The  constitution  of  September  3,  1791,  established  a 
limited  monarchy,  but  disappeared  with  the  fall  of  the  King 
in  the  succeeding  year. 

"2.  The  republican  constitution  of  June  24,  1793,  had  not 
been  put  in  force  before  the  fall  of  the  Jacobins  who  framed  it, 
and  was  disregarded  by  those  who  succeeded  to  their  power. 

"3.  The  constitution  of  August  22,  1795,  vested  the  execu- 
tive power  in  five  Directors,  and  the  legislative  power  in  a  Coun- 
cil of  Five  Hundred  and  a  Council  of  Ancients.  It  represents 
the  conservative  reaction  from  the  Jacobin  principles  of  1793. 

"4.  The  usurpations  of  the  Directory  and  the  coup  d'ttat  of 
November  9,  1799,  put  an  end  to  the  constitution  of  1795.  Un- 
der the  constitution  of  December  13,  1799,  Napoleon  gained  as 
First  Consul  the  supreme  executive  power  to  which  he  aspired. 

"5.  The  senatus-consulta  of  August  2  and  4, 1802,  proclaimed 
Napoleon  First  Consul  for  life  with  extended  powers,  and  on 
May  18,  1804,  the  Consulate  was  replaced  by  the  Empire.  The 
constitution  was  altered  by  several  other  less  important  acts 
between  1804  and  1814.  Intimately  connected  with  the  first 
imperial  constitution  is  the  additional  act  of  April  22,  1815, 
which  by  its  liberal  principles  attempted  to  outbid  the  Bourbon 
charter  of  1814;  the  additional  act  disappeared  with  the  defeat  of 
Napoleon  at  Waterloo. 

"  6.  Upon  the  restoration  of  the  Bourbons  the  constitutional 
Charter  of  June  4,  1814,1  was  issued  by  Louis  XVIII;  with  this 
constitution  was  first  established  the  parliamentary  system  with 
ministerial  responsibility;  the  legislature  was  composed  of  two 
houses,  one  appointive,  the  other  elective,  but  with  a  very  lim- 
ited electorate. 

French  text  in  the  British  and  Foreign  State  Papers,  1 :  pp.  960-966. 

521 


522  APPENDIX  II 

"7.  The  constitution  of  August  14,  1830, 1  and  the  organic 
laws  of  1831  came  as  a  result  of  the  July  revolution  of  1830. 
The  constitution  of  1814  remained  almost  unchanged,  except 
for  a  limited  extension  of  the  suffrage  and  the  abolition  of  hered- 
itary peerages. 

"8.  The  republican  constitution  of  November  4,  1848,2  in- 
troduced universal  suffrage,  with  a  unicameral  legislature,  and 
an  elective  president  chosen  for  four  years  and  ineligible  to  suc- 
ceed himself. 

"9.  The  constitution  of  January  14,  1852,3  extended  for  10 
years  the  power  of  Louis  Napoleon  Bonaparte  as  President  of 
the  Republic;  the  senatus-consultum  of  November  7,4  ratified 
by  the  plebiscite  of  November  21  and  22,  1852,  reestablished 
the  Empire.  Between  1852  and  1870  the  constitution  was  al- 
tered by  numerous  senatus-consulta,  the  most  important  of  which 
was  that  of  September  8,  1869,  establishing  ministerial  respon- 
sibility. 

"10.  The  senatus-consultum  of  May  21,  1870,  a  codification 
of  constitutional  changes  since  1860,  was  really  a  new  imperial 
constitution,  and  was  submitted  to  a  vote  of  the  people  as  such. 

"11.  Imperial  institutions  in  France  wrere  now  destined  to 
be  of  short  duration;  the  Empire  disappeared  on  September  4, 
1870,  when  news  reached  Paris  of  the  French  disaster  at  Sedan. 
The  Government  of  the  National  Defense,  which  succeeded  the 
Empire,  gave  way  in  February,  1871,  to  a  National  Assembly 
which  chose  Thiers  chief  of  the  executive  power  of  the  French 
Republic. 

"For  two  years  after  1871  nothing  was  done  by  the  National 
Assembly  toward  the  permanent  establishment  of  the  republic. 
In  fact  the  majority  of  the  Assembly  were  monarchists;  the 
overthrow  of  Thiers  and  the  election  of  Marshal  de  MacMahon 
as  President  were  considered  the  first  steps  toward  the  restora- 
tion of  monarchy,  but  the  attitude  of  the  Comte  de  Chambord 
wrecked  the  hopes  of  his  supporters.  Definite  steps  toward  a 
constitutional  organization  were  not  taken  until  hope  of  a  resto- 
ration of  the  Bourbons  had  disappeared. 

"Even  after  the  failure  to  reestablish  the  monarchy  the  major- 
ity of  the  National  Assembly  hoped  to  prevent  the  permanent 
establishment  of  the  republic.  But  the  provisional  organiza- 
tion of  the  Government  could  not  continue  forever,  nor  could 
the  Assembly,  elected  to  meet  the  national  crisis  of  1871,  expect 


French  text  in  the  British  and  Foreign  State  Papers,  17:  pp.  1013-1018. 
*Ibid.,  36:  pp.  1072-1085. 
3/fcid.,  41:  pp.  1085-1090. 
*IW.t  41:  pp.  1095-1098. 


FRANCE  523 

much  longer  to  remain  in  power.  The  constitutional  and  or- 
ganic laws  were  finally  enacted  in  1875;  and  the  elections  of 
1876  proved  that  the  people  of  France  were  ready  to  support 
republican  institutions.  In  addition  to  these  laws,  some  sub- 
sequent laws  bearing  upon  constitutional  matters  have  been 
included  here",1  the  last  being  the  electoral  law  of  1919. 

2.  FUNDAMENTAL  LAWS  OF  FRANCE 

CONSTITUTIONAL  LAW  OF  FEBRUARY  25,  1875» 
ON  THE  ORGANIZATION  OF  THE  PUBLIC  POWERS 

Article  1.  The  legislative  power  shall  be  exercised  by  two 
assemblies :  The  Chamber  of  Deputies  and  the  Senate. 

The  Chamber  of  Deputies  shall  be  elected  by  universal 
suffrage,  under  the  conditions  determined  by  the  electoral  law. 

The  composition,  the  method  of  election,  and  the  attributions 
of  the  Senate  shall  be  regulated  by  a  special  law. 

Art.  2.  The  President  of  the  Republic  shall  be  chosen  by  an 
absolute  majority  of  votes  of  the  Senate  and  Chamber  of  Dep- 
uties united  in  National  Assembly.  He  shall  be  elected  for 
seven  years.  He  shall  be  eligible  for  reelection. 

Art.  3.  The  President  of  the  Republic  shall  have  the  initia- 
tive of  laws,  concurrently  with  the  members  of  the  two  houses. 
He  shall  promulgate  the  laws  when  they  have  been  voted  by  the 
two  houses;3  he  shall  look  after  and  secure  their  execution. 

He  shall  have  the  right  of  pardon;  amnesty  may  only  be 
granted  by  law. 

He  shall  dispose  of  the  armed  force. 

He  shall  appoint  to  all  civil  and  military  positions. 

1These  introductory  paragraphs  are  quoted  from  Wright,  The  Constitution 
of  the  States  at  War,  pp.  191,  192  (Washington,  Government  Printing  Office. 
1919).  They  are  "based  upon  W.  F.  Dodd  Modern  Constitutions,  Vol.  I,  pp. 
283-285  (Chicago,  1909).  There  is  also  a  very  good  account  in  Dareste 
Les  constitutions  modernes,  Vol.  I,  pp.  1-9  (3d  edition,  Paris,  1910)." 

Promulgated  in  the  Journal  officiel  of  February  28,  1875.  The  translation  of 
this  and  the  following  laws,  except  the  electoral  law  of  1919,  is  based  upon 
Wright,  op.  cit.,  pp.  193  ff.,  which  uses  Dodd,  Modern  Constitutions,  Vol.  I,  pp. 
286  ff.,  which  in  turn  was  based  upon  the  translation  by  C.  F.  A.  Currier  in 
the  Supplement  to  the  Annals  of  the  American  Academy  of  Political  and  Social 
Science,  March,  1893  (Philadelphia,  1893),  and  in  Foreign  Constitutions  [The 
Convention  Manual  of  the  Sixth  New  York  State  Constitutional  Convention,  1894, 
Part  2,  Vol.  3]  pp.  230-255  (Albany,  1894).  French  text  in  Dareste,  op.  cit., 
Vol.  I.,  pp.  10-37,  and  a  German  version  in  Paul  Posener,  Die  Staatsverfait- 
ungen  des  Erdballs,  pp.  564-587  (Charlottenburg,  1909). 

'See  Article  7  of  the  Constitutional  Law  of  July  16,  1875,  on  p.  527. 


524  APPENDIX  II 

He  shall  preside  over  Senate  functions;  envoys  and  ambassa- 
dors of  foreign  powers  shall  be  accredited  to  him. 

Every  act  of  the  President  of  the  Republic  shall  be  counter- 
signed by  a  minister. 

Art.  4.  As  vacancies  occur  on  and  after  the  promulgation  of 
the  present  law,  the  President  of  the  Republic  shall  appoint,  in 
the  Council  of  Ministers,  the  councilors  of  state  hi  regular  ser- 
vice. 

The  councilors  of  state  thus  chosen  may  be  dismissed  only  by 
decree  rendered  in  the  Council  of  Ministers.1 

Art.  5.  The  President  of  the  Republic  may,  with  the  advice 
of  the  Senate,  dissolve  the  Chamber  of  Deputies  before  the  legal 
expiration  of  its  mandate. 

In  that  case  the  electoral  colleges  shall  be  assembled  for  new 
elections  within  the  space  of  two  months  and  the  Chamber  with- 
in the  ten  days  following  the  close  of  the  elections.2 

Art.  6.  The  ministers  shall  be  collectively  responsible  to  the 
houses  for  the  general  policy  of  the  government,  and  indi- 
vidually for  their  personal  acts. 

The  President  of  the  Republic  shall  be  responsible  only  in  case 
of  high  treason.3 

Art.  7.  In  case  of  vacancy  by  death  or  for  any  other  reason, 
the  two  houses  assembled  together  shall  proceed  at  once  to  the 
election  of  a  new  President.4 

In  the  meantime  the  Council  of  Ministers  shall  be  vested  with 
the  executive  power. 

Art.  8.  The  houses  shall  have  the  right  by  separate  resolu- 
tions, taken  in  each  by  an  absolute  majority  of  votes,  either  upon 
their  own  initiative  or  upon  the  request  of  the  President  of  the 
Republic,  to  declare  a  revision  of  the  constitutional  laws  neces- 
sary.5 

After  each  of  the  two  houses  shall  have  come  to  this  decision, 
they  shall  meet  together  in  National  Assembly  to  proceed  with 
the  revision. 

The  acts  effecting  revision  of  the  constitutional  laws,  in  whole 
or  in  part,  shall  be  passed  by  an  absolute  majority  of  the  mem- 
bers composing  the  National  Assembly.6 

irThe  Council  of  State  is  governed  by  the  Laws  of  May  24,  1872,  and  July  13, 
1879.  Clause  3  of  the  above  article  has  been  omitted,  because  it  ceased  to  have 
application  after  1881. 

2As  amended  by  Article  1  of  the  Constitutional  Law  of  August  14,  1884. 
'See  Article  12  of  the  Constitutional  Law  of  July  16,  1875,  on  p.  527. 
*See  Article  3  of  the  Constitutional  Law  of  July  16,  1875,  on  p.  526. 
8  Article  8  has  been  put  into  practice  twice,  in  1879  and  in  1884. 

'The  clause  following  this,  concerning  the  presidency  of  Marshal  de  Mac- 
Mahon,  is  now  without  object. 


FRANCE  525 

The  republican  form  of  government  shall  not  be  made  the 
subject  of  a  proposed  revision.1 

Members  of  families  that  have  reigned  in  France  are  ineligible 
to  the  Presidency  of  the  Republic.1 

Art.  9.» 

CONSTITUTIONAL  LAW  OF  FEBRUARY  24,  1875» 
ON  THE  ORGANIZATION  OF  THE  SENATE 

Articles  1 — 7.4 

Art.  8.  The  Senate  shall  have,  concurrently  with  the  Cham- 
ber of  Deputies,  the  power  to  initiate  and  to  pass  laws.  Money 
bills,  however,  shall  first  be  introduced  in  and  passed  by  the 
Chamber  of  Deputies.5 

Art.  9.  The  Senate  may  be  constituted  a  court  of  justice  to 
try  either  the  President  of  the  Republic  or  the  ministers,  and  to 
take  cognizance  of  attacks  made  upon  the  safety  of  the  state. 

Art.  10.  Elections  to  the  Senate  shall  take  place  one  month 
before  the  time  fixed  by  the  National  Assembly  for  its  own  dis- 
solution. The  Senate  shall  organize  and  enter  upon  its  duties 
the  same  day  that  the  National  Assembly  is  dissolved. 

Art.  11.  The  present  law  shall  be  promulgated  only  after  the 
passage  of  the  law  on  the  public  powers. 

CONSTITUTIONAL  LAW  OF  JULY  16,  1875« 
ON  RELATIONS  OF  THE  PUBLIC  POWERS 

Article  1.  The  Senate  and  the  Chamber  of  Deputies  shall 
assemble  each  year  on  the  second  Tuesday  of  January,  unless 
convened  earlier  by  the  President  of  the  Republic. 

JAdded  by  Article  2  of  the  Constitutional  Law  of  August  14,  1884. 

'Repealed  by  the  constitutional  law  of  June  21,  1879.  Article  9  originally 
read:  "The  seat  of  the  executive  power  and  of  the  two  houses  shall  be  at  Ver- 
sailles." See  Law  of  July  22,  1879,  on  p.  540. 

'Promulgated  in  the  Journal  officiel  of  February  28,  1875. 

4These  seven  articles,  concerning  the  composition  of  the  Senate  and  of  the 
electoral  body  which  names  the  Senators,  were  deprived  of  their  constitutional 
character  by  Article  3  of  the  Law  of  August  14,  1884,  and  were  repealed  by  Arti- 
cle 9  of  the  Law  of  December  9,  1884.  See  below,  pp.  529  and  541,  respectively. 

This  text  is  an  almost  literal  reproduction  of  Article  15  of  the  Charter  of  1830, 
which  in  turn  was  borrowed  from  the  Charter  of  1814  (Articles  17  and  47).  The 
Senate  and  the  Chamber  since  1876  have  frequently  been  in  disagreement  upon 
the  interpretation  to  be  given  to  Article  8,  the  former  maintaining  that  no  ex- 
ception for  money  bills  is  made  to  the  general  principle  of  the  equality  of  the  two 
houses  in  the  passage  of  laws,  the  latter  claiming  exclusive  control  of  budgetary 
rights. 

•Promulgated  in  the  Journal  officid  of  July  18, 1875. 


526  APPENDIX  II 

The  two  houses  shall  continue  in  session  at  least  five  months 
each  year.  The  sessions  of  the  two  houses  shall  begin  and  end 
at  the  same  time.1 

Art.  2.  The  President  of  the  Republic  pronounces  the  closing 
of  the  session.  He  may  convene  the  houses  in  extraordinary 
session. 

He  shall  convene  them  if,  during  the  recess,  an  absolute  ma- 
jority of  the  members  of  each  house  request  it. 

The  President  may  adjourn  the  houses.  The  adjournment, 
however,  shall  not  exceed  one  month,  nor  take  place  more  than 
twice  in  the  same  session. 

Art.  3.  One  month  at  least  before  the  legal  expiration  of  the 
powers  of  the  President  of  the  Republic,  the  houses  shall  be 
called  together  in  National  Assembly  to  proceed  to  the  election 
of  a  new  President. 

In  default  of  a  summons,  this  meeting  shall  take  place,  as  of 
right,  the  fifteenth  day  before  the  expiration  of  these  powers. 

In  case  of  the  death  or  resignation  of  the  President  of  the 
Republic,  the  two  houses  shall  assemble  immediately,  as  of 
right.2 

In  case  the  Chamber  of  Deputies,  in  consequence  of  Article  5 
of  the  Law  of  February  25, 1875,  is  dissolved  at  the  time  when  the 
Presidency  of  the  Republic  becomes  vacant,  the  electoral  colleges 
shall  be  convened  at  once,  and  the  Senate  shall  assemble  as  of 
right. 

Art.  4.  Every  meeting  of  either  of  the  two  houses  which  shall 
be  held  at  a  time  when  the  other  is  not  in  session  is  ipso  facto 
illegal  and  void,3  except  in  the  case  provided  for  in  the  preceding 
Article,  and  in  case  the  Senate  meets  as  a  court  of  justice;  in  the 
latter  case,  judicial  duties  alone  shall  be  performed. 

Art.  5.  The  sittings  of  the  Senate  and  of  the  Chamber  of 
Deputies  shall  be  public. 

Nevertheless,  either  house  may  meet  in  secret  session,  upon  the 
request  of  a  fixed  number  of  its  members,  determined  by  the 
rules.4 

It  shall  then  decide  by  absolute  majority  whether  the  sitting 
shall  be  resumed  in  public  upon  the  same  subject. 

Art.  6.  The  President  of  the  Republic  communicates  with  the 
houses  by  messages,  which  shall  be  read  from  the  tribune  by  a 
minister. 

JThe  third  paragraph  of  this  article,  repealed  by  Article  4  of  the  Law  of 
August  14,  1884,  prescribed  public  prayers  on  the  Sunday  following  the  con- 
vening of  the  houses. 

2See  Article  7  of  the  Constitutional  Law  of  February  25,  1875,  on  p.  524. 

3See  above,  Paragraph  2  of  Article  1. 

4The  number  of  members  required  for  such  action  is  5  for  the  Senate  and  20 
for  the  Chamber- 


FRANCE  527 

The  ministers  shall  have  entrance  to  both  houses,  and  shall  be 
heard  when  they  request  it.  They  may  be  assisted,  for  the  dis- 
cussion of  a  specific  bill,  by  commissioners  named  by  decree  of 
the  President  of  the  Republic. 

Art.  7.  The  President  of  the  Republic  shall  promulgate  the 
laws  within  the  month  following  the  transmission  to  the  govern- 
ment of  the  law  finally  passed.  He  shall  promulgate,  within 
three  days,  laws  the  promulgation  of  which  shall  have  been  de- 
clared urgent  by  an  express  vote  of  each  house.1 

Within  the  time  fixed  for  promulgation  the  President  of  the 
Republic  may,  by  a  message  with  reasons  assigned,  request  of  the 
two  houses  a  new  discussion,  which  cannot  be  refused. 

Art.  8.  The  President  of  the  Republic  shall  negotiate  and 
ratify  treaties.  He  shall  give  information  regarding  them  to  the 
houses  as  soon  as  the  interests  and  safety  of  the  state  permit. 

Treaties  of  peace  and  of  commerce,  treaties  which  involve  the 
finances  of  the  state,  those  relating  to  the  status  of  the  persons 
and  to  the  right  of  property  of  French  citizens  in  foreign  coun- 
tries, shall  be  ratified  only  after  having  been  voted  by  the  two 
houses.  No  cession,  exchange,  or  annexation  of  territory  shall 
take  place  except  by  virtue  of  a  law. 

Art.  9.  The  President  of  the  Republic  shall  not  declare  war 
without  the  previous  consent  of  the  two  houses. 

Art.  10.  Each  house  shall  be  the  judge  of  the  eligibility  of  its 
members  and  of  the  regularity  of  their  election;  it  alone  may 
receive  their  resignation. 

Art.  1 1 .  The  bureau2  of  each  house  shall  be  elected  each  year 
for  the  entire  session,  and  for  every  extraordinary  session  which 
may  be  held  before  the  regular  session  of  the  following  year. 

When  the  two  houses  meet  together  as  a  National  Assembly, 
their  bureau  shall  be  composed  of  the  President,  Vice-Presidents 
and  secretaries  of  the  Senate. 

Art.  12.  The  President  of  the  Republic  may  be  impeached 
only  by  the  Chamber  of  Deputies  and  may  be  tried  only  by  the 
Senate. 

The  ministers  may  be  impeached  by  the  Chamber  of  Deputies 
for  offenses  committed  in  the  performance  of  their  duties.  In 
this  case  they  shall  be  tried  by  the  Senate. 

The  Senate  may  be  constituted  into  a  court  of  justice,  by  a 
decree  of  the  President  of  the  Republic  issued  in  the  Council  of 
Ministers,  to  try  all  persons  accused  of  attempts  upon  the  safety 
of  the  state. 


JA  decree  of  April  6,  1876,  governs  the  formuk  of  promulgation  of  laws. 

The  bureau  of  the  Senate  consists   of  a   president,  4  vice-presidents,  8 
secretaries,  and  3  questors;  the  bureau  of  the  Chamber  of  Deputie 
same  composition. 


528  APPENDIX  II 

If  proceedings  should  have  been  begun  in  the  regular  courts, 
the  decree  convening  the  Senate  may  be  issued  at  any  time  be- 
fore the  granting  of  a  discharge. 

A  law  shall  determine  the  method  of  procedure  for  the  accu- 
sation, trial,  and  judgment.1 

Art.  13.  No  member  of  either  house  shall  be  prosecuted  or 
held  responsible  on  account  of  any  opinions  expressed  or  votes 
cast  by  him  in  the  performance  of  his  duties.2 

Art.  14.  No  member  of  either  house  shall,  during  the  session, 
be  prosecuted  or  arrested  for  any  offense  or  misdemeanor,  unless 
upon  the  authority  of  the  house  of  which  he  is  a  member,  ex- 
cept in  the  case  of  flagrante  delicto. 

The  detention  or  prosecution  of  a  member  of  either  house 
shall  be  suspended  for  the  session,  and  for  the  entire  term  of  the 
house,  if  the  chamber  requires  it. 


LAW  OF  JUNE  21,  1879* 

REVISING  ARTICLE  9  OF  THE  CONSTITUTIONAL  LAW  OF 
FEBRUARY  25,  1875 

Sole    Article.     Article  9  of   the    Constitutional    Law   of 
February  25,  1875,  is  repealed.4 


LAW  OF  AUGUST  14,  1884s 
PARTIALLY  REVISING  THE  CONSTITUTIONAL  LAWSS 

Article  1.  Paragraph  2  of  Article  5  of  the  Constitutional  Law 
of  February  25, 1875,  on  the  organization  of  the  public  powers,  is 
amended  as  follows: 

In  that  case  the  electoral  colleges  shall  meet  for  new  elections  within  2  months 
and  the  Chamber  within  the  10  days  following  the  close  of  the  elections. 


'Law  of  April  10,  1889. 

2Article  41  of  the  Law  of  July  29, 1881,  on  the  press  develops  and  completes  this 
provision. 

'Promulgated  in  the  Journal  qfficiel  of  June  22,  1879. 

4This  article  fixed  the  seat  of  government  at  Versailles  (see  above,  p.  525). 
The  seat  of  government  was  removed  from  Versailles  to  Paris  by  a  Law  of 
July  22,  1879  (see  below,  p.  540). 

'Promulgated  in  the  Journal  officiel  of  August  15,  1884. 

The  amendments  to  the  constitutional  laws  have  also  been  inserted  in  their 
proper  places. 


FRANCE  529 


--.-=- -rr  S  of  Article  8  of  the  same  law  of 
February  25,  1785,  is  added  the  following: 

The  republican  form  of  government  shall  not  be  made  the  subject  of  a  pro- 
posed revision. 

Members  of  families  that  have  reigned  in  France  are  ineligible  to  the  Presi- 
dency of  the  Republic. 

Art.  3.  Articles  1  to  7  of  the  Constitutional  Law  of  February 
24,  1875,  on  the  organization  of  the  Senate,  shall  no  longer 
have  a  constitutional  character.1 

Art.  4.  Paragraph  3  of  Article  1  of  the  Constitutional  Law  of 
July  16,  1875,  on  the  relation  of  the  public  powers,  is  repealed. 

ORGANIC  LAW  OF  AUGUST  2,  1875s 
ON  THE  ELECTION  OF  SENATORS 

Article  1.  A  decree  of  the  President  of  the  Republic,  issued 
at  least  six  weeks  in  advance,  shall  fix  the  day  for  the  elections 
to  the  Senate,  and  at  the  same  time  that  for  the  choice  of  dele- 
gates of  the  municipal  councils.  There  shall  be  an  interval  of  at 
least  one  month  between  the  choice  of  delegates  and  the  election 
of  Senators. 

Art.  2.  In  each  municipal  council  the  election  of  delegates 
shall  take  place  without  debate  and  by  secret  ballot,  by  scrutin 
de  liste  and  by  an  absolute  majority  of  votes  cast. 

After  two  ballots  a  plurality  shall  be  sufficient  and  in  case  of 
an  equality  of  votes  the  oldest  is  elected. 

The  procedure  and  method  shall  be  the  same  for  the  election 
of  alternates. 

Councils  having  1,  2,  or  3  delegates  to  choose  shall  elect  1 
alternate. 

Those  choosing  6  or  9  delegates  shall  elect  2  alternates. 

Those  choosing  12  or  15  delegates  shall  elect  3  alternates. 

Those  choosing  18  or  21  delegates  shall  elect  4  alternates. 

Those  choosing  24  delegates  shall  elect  5  alternates. 

The  municipal  council  of  Paris  shall  elect  8  alternates. 

The  alternates  shall  take  the  place  of  delegates  in  case  of  re- 
fusal or  inability  to  serve,  in  the  order  determined  by  the  number 
of  votes  received  by  each  of  them. 

The  choice  of  the  municipal  councils  shall  not  extend  to  a 
deputy,  a  general  councilor  or  an  arrondissement  councilor. 


'These  articles  were  repealed  by  way  of  ordinary  legislation  on  December  9, 
1884  (see  below,  p.  541). 

2Promulgated  in  the  Journal  officiel  of  August  13,  1875. 


530  APPENDIX  II 

All  communal  electors,  including  the  municipal  councilors, 
shall  be  eligible  without  distinction.1 

Art.  3.  In  communes  where  the  duties  of  the  municipal 
council  are  performed  by  a  special  delegation  organized  by  vir- 
tue of  Article  44  of  the  Law  of  April  5, 1884,  the  senatorial  dele- 
gates and  alternates  shall  be  chosen  by  the  former  council.2 

Art.  4.  If  the  delegates  were  not  present  at  the  election, 
notice  shall  be  given  them  by  the  mayor  within  24  hours.  They 
shall,  within  5  days,  notify  the  prefect  of  their  acceptance.  In 
case  of  refusal  or  silence,  they  shall  be  replaced  by  the  alternates, 
who  shall  then  be  placed  upon  the  list  as  the  delegates  of  the 
commune.2 

Art.  5.  The  official  report  of  the  election  of  delegates  and 
alternates  shall  be  transmitted  at  once  to  the  prefect;  it  shall 
state  the  acceptance  or  refusal  of  the  delegates  and  alternates, 
as  well  as  the  protests  raised,  by  one  or  more  members  of  the 
municipal  council,  against  the  legality  of  the  election.  A  copy 
of  this  official  report  shall  be  posted  on  the  door  of  the  town  hall.2 

Art.  6.  A  statement  of  the  results  of  the  election  of  delegates 
and  alternates  shall  be  drawn  up  within  a  week  by  the  prefect; 
this  statement  shall  be  given  to  all  requesting  it,  and  may  be 
copied  and  published. 

Every  elector  may,  at  the  bureau  of  the  prefecture,  obtain  in- 
formation and  a  copy  of  the  list,  by  communes,  of  the  municipal 
councilors  of  the  department,  and,  at  the  bureaus  of  the  sub- 
prefectures,  information  and  a  copy  of  the  list,  by  communes,  of 
the  municipal  councilors  of  the  arrondissement. 

Art.  7.  Every  communal  elector  may,  within  the  next  three 
days,  address  directly  to  the  prefect  a  protest  against  the  regu- 
larity of  the  election. 

If  the  prefect  deems  the  proceedings  irregular,  he  may  request 
that  they  be  set  aside. 

Art.  8.  Protests  concerning  the  election  of  delegates  or  of 
alternates  shall  be  decided,  subject  to  an  appeal  to  the  Council 
of  State,  by  the  council  of  the  prefecture,  and,  in  the  colonies, 
by  the  privy  council. 

Delegates  whose  election  is  annulled  because  they  do  not  fulfill 
some  one  of  the  conditions  demanded  by  law,  or  on  account  of 
informality,  shall  be  replaced  by  the  alternates. 

In  case  the  election  of  a  delegate  and  of  an  alternate  is  annulled 
or  in  the  case  of  the  refusal  or  death  of  both  of  them  after  their 

lAs  amended  by  Article  8  of  the  Law  of  December  9,  1884  (see  below,  p.  543). 
The  original  text  provided  that  each  municipal  council  elect  one  delegate  and 
one  alternate. 

2As  amended  by  Article  8  of  the  Law  of  December  9, 1884  (see  below,  p.  543). 
The  amendments  of  Articles  4  and  5  merely  substitute  "delegates"  and  "alter- 
nates" for  "delegate"  and  "alternate." 


FRANCE  531 

acceptance,  new  elections  shall  be  held  by  the  municipal  council 
on  a  day  fixed  by  an  order  of  the  prefect.1 

Art.  9.  One  week,  at  the  latest,  before  the  election  of  Senators 
the  prefect,  and,  in  the  colonies,  the  director  of  the  interior,  shall 
arrange  the  list  of  the  electors  of  the  department  in  alphabetical 
order.  The  list  shall  be  communicated  to  all  who  request  it, 
and  may  be  copied  and  published.  No  elector  shall  have  more 
than  one  vote. 

Art.  10.  The  deputies,  the  members  of  the  general  council,  or 
of  the  arrondissement  councils,  whose  elections  have  been  an- 
nounced by  the  returning  committees,  but  whose  powers  have 
not  been  verified,  shall  be  enrolled  upon  the  list  of  electors  and 
shall  take  part  in  the  voting. 

Art.  11.  In  each  of  the  three  departments  of  Algeria  the 
electoral  college  shall  be  composed: 

(1)  Of  the  deputies. 

(2)  Of  the  members  of  the  general  councils  of  French  citizen- 
ship. 

(3)  Of   delegates   elected  by  the  French  members  of  each 
municipal  council  from  among  the  communal  electors  of  French 
citizenship. 

Art.  12.  The  electoral  college  shall  be  presided  over  by  the 
president  of  the  civil  tribunal  of  the  seat  of  government  of  the 
department  or  colony.  In  the  Department  of  Ardennes  it  shall 
be  presided  over  by  the  president  of  the  tribunal  of  Charleville.1 

The  president  shall  be  assisted  by  the  two  oldest  and  the  two 
youngest  electors  present  at  the  opening  of  the  meeting.  The 
bureau  thus  constituted  shall  choose  a  secretary  from  among  the 
electors. 

If  the  president  is  prevented  from  presiding,  his  place  shall  be 
taken  by  the  vice-president  [of  the  civil  tribunal],  and,  in  his 
absence,  by  the  oldest  judge. 

Art.  13.  The  bureau  shall  divide  the  electors  in  alphabetical 
order  into  sections  of  at  least  100  voters  each.  It  shall  appoint 
the  president  and  inspectors  of  each  of  these  sections.  It  shall 
decide  all  questions  and  contests  which  may  arise  in  the  course 
of  the  election,  without  power,  however,  to  depart  from  the  de- 
cisions rendered  by  virtue  of  Article  8  of  the  present  law. 

Art.  14.  The  first  ballot  shall  begin  at  8  o'clock  in  the  morn- 
ing and  close  at  noon.  The  second  shall  begin  at  2  o'clock  and 
close  at  5  o'clock.  The  third  shall  begin  at  7  o'clock  and  close 
at  10  o'clock.  The  results  of  the  ballotings  shall  be  canvassed  by 


1Aa  amended  by  Article  8  of  the  Law  of  December  9, 1884  (see  below,  p.  543). 
The  amendment  to  this  article  merely  substitutes  "delegates"  and  "alternates 
for  "delegate"  and  "alternate." 

*This  sentence  was  added  by  the  Law  of  February  1,  1898. 


532  APPENDIX  II 

the  bureau  and  announced  immediately  by  the  president  of  the 
electoral  college.1 

Art.  15.  No  one  shall  be  elected  Senator  on  either  of  the  first 
two  ballots  unless  he  receives  (1)  an  absolute  majority  of  the 
votes  cast  and  (2)  a  number  of  votes  equal  to  one-fourth  of  the 
total  number  of  electors  registered.  On  the  third  ballot  a 
plurality  shall  be  sufficient,  and,  in  case  of  an  equality  of  votes, 
the  oldest  is  elected. 

Art.  16.  Political  meetings  for  the  nomination  of  Senators 
may  be  held  from  the  date  of  the  promulgation  of  the  decree 
summoning  the  electors  up  to  the  day  of  the  election,  inclusive. 

The  declaration  prescribed  by  Article  2  of  the  Law  of  June  30, 
188 1,2  shall  be  made  by  two  voters  at  least. 

The  forms  and  regulations  of  this  Article,  as  well  as  those  of 
Article  3,  shall  be  observed. 

The  members  of  Parliament  elected  or  electors  in  the  de- 
partment, the  senatorial  electors,  delegates  and  alternates,  and 
the  candidates  or  their  representatives  may  alone  be  present  at 
these  meetings. 

The  municipal  authorities  shall  see  to  it  that  no  other  person 
is  admitted. 

Delegates  and  alternates  shall  present  as  a  means  of  identifi- 
cation a  certificate  from  the  mayor  of  the  commune;  candidates 
or  their  representatives,  a  certificate  from  the  official  who  shall 
have  received  the  declaration  mentioned  in  Paragraph  2.3 

Art.  17.  Delegates  who  take  part  in  all  the  ballotings  shall, 
if  they  demand  it,  receive  from  the  state,  upon  the  presentation 
of  their  letter  of  summons,  countersigned  by  the  president  of 
the  electoral  college,  a  remuneration  for  traveling  expenses, 
which  shall  be  paid  to  them  upon  the  same  basis  and  in  the 
same  manner  as  that  given  to  jurors  by  Articles  35,  90  and  fol- 
lowing of  the  decree  of  June  18, 1811. 

A  public  administrative  regulation  shall  determine  the  manner 
of  fixing  the  amount  and  the  method  of  payment  of  this  re- 
muneration.4 

Art.  18.  Every  delegate  who,  without  lawful  reason,  shall 
not  take  part  in  all  the  ballotings,  or,  having  been  hindered, 
shall  not  have  given  notice  to  the  alternate  in  sufficient  time, 
shall,  upon  the  demand  of  the  public  prosecutor,  be  fined  50 
francs  by  the  civil  tribunal  of  the  seat  of  government. 

The  same  penalty  may  be  imposed  upon  the  alternate  who, 

'As  amended  by  Article  8  of  the  Law  of  December  9,  1884  (see  below,  p.  543). 

2Law  on  the  freedom  of  assembly.  The  Law  of  March  28,  1907,  concerning 
public  gatherings,  suppressed  the  formality  of  a  previous  declaration. 

3 As  amended  by  Article  8  of  the  Law  of  December  9,  1884  (see  below,  p.  543). 
4Decree  of  December  26,  1875. 


FRANCE  533 

after  having  been  notified  by  letter,  telegram,  or  notice  person- 
ally delivered  in  due  time,  shall  not  have  taken  part  in  the  elec- 
tion. 

Art.  19.  Every  attempt  at  corruption  or  constraint  by  the 
employment  of  means  enumerated  in  Articles  177  and  following 
of  the  Penal  Code,  to  influence  the  vote  of  an  elector  or  to  keep 
him  from  voting,  shall  be  punished  by  imprisonment  of  from 
three  months  to  two  years  and  by  a  fine  of  from  50  to  500  francs, 
or  by  either  of  these  penalties. 

Article  463  of  the  Penal  Code  is  applicable  to  the  penalties 
provided  by  the  present  Article.1 

Art.  20.  There  is  incompatibility  between  the  functions  of 
Senator  and  those: 

Of  councilor  of  state  and  maitre  des  requetes,  prefect  and  sub- 
prefect,  except  the  prefect  of  the  Seine  and  the  prefect  of  the 
police. 

Of  member  of  the  courts  of  appeal2  and  of  tribunals  of  first 
instance,  except  the  public  prosecutor  before  the  court  of  Paris. 

Of  paymaster  general,  of  special  receiver,  of  official  and  em- 
ployee of  the  central  administration  of  the  ministries.8 

Art.  21.  No  one  of  the  following  officers  shall  be  elected  by 
the  department  or  the  colony  included  wholly  or  partially  in  his 
jurisdiction  during  the  exercise  of  his  duties  or  during  the  six 
months  following  the  cessation  of  his  duties  by  resignation,  dis- 
missal, change  of  residence,  or  other  cause : 

(1)  The  first  presidents,  presidents,  and  members  of  the 
courts  of  appeal. 

(2)  The  presidents,  vice-presidents,  examining  magistrates 
and  members  of  the  tribunals  of  first  instance. 

(3)  The  prefect  of  police,  prefects  and  subprefects  and  secre- 
taries general  of  prefectures;  the  governors,  directors  of  the 
interior,  and  secretaries  general  of  the  colonies. 

(4)  The  engineers  in  chief  and  of  the  arrondissement  and 
road  surveyors  in  chief  and  of  the  arrondissement. 

(5)  The  rectors  and  inspectors  of  academies. 

(6)  The  inspectors  of  primary  schools. 

(7)  The  archbishops,  bishops,  and  vicars  general.4 

*As  amended  by  Article  8  of  the  Law  of  December  9,  1884  (see  p.  543). 

2France  is  divided  into  26  judicial  districts,  in  each  of  which  there  is  a  court  of 
appeal.  There  are  similar  courts  in  Algeria  and  the  colonies.  The  Court  of 
Cassation  is  the  supreme  court  of  appeal  for  all  France,  Algeria,  and  the  colonies. 

3This  article  was  implicitly  repealed  by  the  Law  of  December  26, 1887  (see  be- 
low, p.  545).  By  Article  3  of  the  Law  of  November  16,  1897,  the  governor  and 
undergovernor  of  the  Bank  of  France  are  ineh'gible  as  Deputies  or  Senators. 

*This  clause  was  implicitly  repealed  by  Article  2  of  the  Law  of  December  9, 
1905,  on  the  separation  of  Church  and  State. 


534  APPENDIX  II 

(8)  The  officers  of  all  grades  of  the  land  and  naval  forces. 

(9)  The  division  commissaries  and  the  military  deputy  com- 
missaries. 

(10)  The  paymasters  general  and  special  receivers  of  money. 

(11)  The   superintendents  of  direct  and  indirect  taxes,  of 
registration  and  of  public  property,  and  of  posts. 

(12)  The  commissioners  and  inspectors  of  forests. 

Art.  22.  A  Senator  elected  in  several  departments  shall  make 
known  his  choice  to  the  president  of  the  Senate  within  10  days 
following  the  verification  of  the  elections.  If  a  choice  is  not 
made  in  this  time,  the  question  shall  be  settled  by  lot  in  open 
session. 

The  vacancy  shall  be  filled  within  one  month  and  by  the  same 
electoral  body. 

The  same  holds  true  in  case  of  an  invalidated  election. 

Art.  23.  Vacancies  caused  by  the  death  or  resignation  of 
Senators  shall  be  filled  within  three  months;  however,  if  the  va- 
cancy occurs  within  six  months  preceding  the  triennial  election 
it  shall  not  be  filled  until  those  elections.1 

Art.  24-25.2 

Art.  26.  Members  of  the  Senate  shall  receive  the  same  sala- 
ries as  members  of  the  Chamber  of  Deputies.3 

Art.  27.  All  provisions  of  the  electoral  law  relating  to  the 
following  matters  are  applicable  to  elections  of  senators: 

(1)  To  cases  of  unworthiness  and  incapacity. 

(2)  To  offenses,  prosecutions,  and  penalties. 

(3)  To  election  proceedings,  in  all  matters  not  contrary  to 
the  provisions  of  the  present  law. 

Art.  2S-29.4 


ORGANIC  LAW  OF  NOVEMBER  30,  1875' 
ON  THE  ELECTION  OF  DEPUTIES 

Article  1.  The  Deputies  shall  be  chosen  by  the  voters  reg- 
istered : 

(1)  Upon  the  lists  drawn  up  in  accordance  with  the  Law  of 
July  7,  1874. 


JAs  amended  by  Article  8  of  the  Law  of  December  9, 1884  (see  below,  p.  543). 
*Articles  24  and  25  were  repealed  by  Article  9  of  the  Law  of  December  9, 1884. 
'See  Article  17  of  the  Organic  Law  of  November  30,  1875,  p.  538  below. 
4Articles  28  and  29  of  this  law  contained  transitional  provisions. 

'Promulgated  in  the  Journal  officiel  of  November  31,  1875.  This  law  has  been 
amended  or  supplemented  by  the  I<aws  of  June  16, 1885,  February  13, 1889,  and 
July  17,  1889,  and  July  12,  1919  (see  below,  pp.  545  and  546,  respectively). 


FRANCE  535 

(2)  Upon  the  supplementary  list  including  those  who  have 
lived  in  the  commune  six  months.1 

Registration  upon  the  supplementary  list  shall  take  place  con- 
formably to  the  laws  and  regulations  now  governing  the  political 
electoral  lists,  by  the  committees  and  according  to  the  forms 
established  by  Articles  1,  2,  and  3  of  the  Law  of  July  7,  1874. 

Appeals  relating  to  the  formation  and  revision  of  either  list 
shall  be  brought  directly  before  the  Civil  Chamber  of  the  Court 
of  Cassation.2 

Art.  2.  The  soldiers  of  all  ranks  and  grades,  of  both  land  and 
naval  forces,  shall  not  take  part  in  any  vote  when  they  are  with 
their  regiment,  at  their  post,  or  on  duty.  Those  who,  on  elec- 
tion day,  are  in  private  residence,  on  the  non-active  list,  or  in 
possession  of  a  regular  leave  of  absence,  may  vote  in  the  com- 
mune on  the  lists  of  which  they  are  duly  registered.  This  last 
provision  shall  apply  equally  to  officers  on  the  unattached  list 
or  on  the  reserve  list.3 

Art.  3.  During  the  electoral  period,  circulars  and  platforms 
signed  by  the  candidates,  electoral  placards  and  manifestoes 
signed  by  one  or  more  voters,  may,  after  being  deposited  with 
the  public  prosecutor,  be  posted  and  distributed  without  pre- 
vious authorization. 

The  distribution  of  ballots  shall  not  be  subject  to  the  formality 
of  deposit.4 

Every  public  or  municipal  officer  is  forbidden  to  distribute 
ballots,  platforms,  or  circulars  of  candidates. 

The  provisions  of  Article  19  of  the  Organic  Law  of  August  2, 
1875,5  on  the  election  of  Senators  shall  apply  to  the  election  of 
Deputies. 

Art.  4.  The  balloting  shall  last  one  day  only.  The  voting 
shall  occur  in  the  chief  town  of  the  commune;  each  commune 
may  nevertheless  be  divided,  by  order  of  the  prefect,  into  as  many 
sections  as  local  circumstances  and  the  number  of  voters  may 
require.  The  second  ballot  shall  take  place  on  the  second 
Sunday  following  the  announcement  of  the  first  ballot,  in  ac- 


1There  is  now  only  a  single  list,  common  to  the  political  and  municipal  elec- 
tions, since  municipal  electors  are  subject  to  only  six  months'  residence  (Article 
14  of  the  Law  of  April  5,  1884). 

2Here  follows  a  transitional  provision,  concerning  the  electoral  lists  of  1875, 
omitted  here. 

"See  Article  9  of  the  Law  of  March  21,  1905. 

<The  Law  of  December  20,  1878,  dispensed  with  the  formality  of  deposit  of 
ballots  in  all  elections.  The  printer  was  dispensed  from  the  deposit  of  these 
ballots  by  the  Law  of  July  27,  1881. 

*See  above,  p.  533. 


536  APPENDIX  II 

cordance  with  the  provisions  of  Article  65  of  the  Law  of 
March  15,  1849. 

Art.  5.  The  voting  shall  take  place  in  accordance  with  the 
provisions  of  the  organic  and  regulating  decrees  of  February 
2,  1852. 

The  ballot  shall  be  secret. 

The  voting  lists  used  at  the  elections  in  each  section,  signed 
by  the  president  and  secretary,  shall  remain  deposited  for  one 
week  at  the  secretary's  office  at  the  town  hall,  where  they  shall 
be  communicated  to  every  voter  requesting  them. 

Art.  6.  Every  voter  shall  be  eligible,  without  any  property 
qualification,  at  the  age  of  25  years.1 

Art.  7.  No  soldier  or  sailor  in  active  service  on  land  or  sea 
may,  whatever  his  rank  or  position,  be  elected  a  member  of  the 
Chamber  of  Deputies. 

This  provision  applies  to  soldiers  and  sailors  on  the  unat- 
tached list  or  the  inactive  list,  but  does  not  extend  to  officers  of 
the  second  section  of  the  list  of  the  general  staff,  nor  to  those  who, 
kept  in  the  first  section  for  having  been  commander-in-chief  in 
the  field,  have  ceased  to  be  actively  employed,  nor  to  officers 
who,  having  gained  the  right  to  retire,  are  sent  to  or  kept  at 
their  homes  while  awaiting  the  settlement  of  their  pension. 

The  decision  by  which  the  officer  shall  have  been  permitted 
to  establish  his  rights  on  the  retired  list  shall  become,  in  this 
case,  irre vocable. 

The  rule  laid  down  in  the  first  paragraph  of  the  present  article 
shall  not  apply  to  the  reserve  of  the  active  army  or  to  the  ter- 
ritorial army. 

Art.  8.  The  exercise  of  public  duties  paid  for  out  of  the  treas- 
ury of  the  state  is  incompatible  with  the  office  of  Deputy.2 

Consequently  every  official  elected  shall  be  superseded  in  his 
duties  if,  within  one  week  following  the  verification  of  his  powers, 
he  has  not  signified  that  he  does  not  accept  the  office  of  deputy. 

There  are  excepted  from  the  preceding  provisions  the  duties 
of  minister,  undersecretary  of  state,  ambassador,  minister  plenipo- 
tentiary, prefect  of  the  Seine,  prefect  of  police,  first  president  of 
the  Court  of  Cassation,  first  president  of  the  Court  of  Accounts, 
first  president  of  the  Court  of  Appeal  of  Paris,  attorney  general 
of  the  Court  of  Cassation,  attorney  general  of  the  Court  of 
Accounts,  attorney  general  of  the  Court  of  Appeal  of  Paris, 


Exceptions  to  eligibility  are  to  be  found  in  the  Laws  of  June  16,  1885,  June 
tt,  1886,  July  17,  1889  (see  below,  p.  546),  July  20,  1895,  and  March  21,  1905. 

^To  these  must  be  added  the  duties  of  administrator  of  concessionary  com- 
panies of  maritime  postal  service  (Law  of  June  28,  1883,  Article  10),  administra- 
tors of  railways  (Law  of  November  20,  1883,  Article  5)  and  governor  and  under- 
go vernor  of  the  Bank  of  France  (Law  of  November  17,  1897,  Article  3). 


FRANCE  537 

archbishop  and  bishop,  consistorial  presiding  pastor  in  con- 
sistorial  districts  the  seat  of  government  of  which  has  two  or 
more  pastors,  chief  rabbi  of  the  central  consistory,  chief  rabbi 
of  the  consistory  of  Paris.1 

Art.  9.  There  are  also  excepted  from  the  provisions  of  Ar- 
ticle 8: 

(1)  Titular  professors  of  chairs  which  are  filled  by  compe- 
tition or  upon  the  nomination  of  the  bodies  where  the  vacancy 
occurs. 

(2)  Persons  who  have  been  charged  with  a  temporary  mission. 
All  missions  continuing  more  than  six  months  cease  to  be  tem- 
porary and  are  governed  by  Article  8  above.2 

Art.  10.  The  officer  preserves  the  rights  which  he  has  ac- 
quired to  a  retiring  pension,  and  may,  after  the  expiration  of  his 
mandate,  be  restored  to  active  service. 

The  civil  officer  who,  having  had  20  years  of  service  at  the  date 
of  the  acceptance  of  the  mandate  of  Deputy,  shall  be  50  years  of 
age  at  the  time  of  the  expiration  of  his  mandate,  may  establish 
his  rights  to  an  exceptional  retiring  pension. 

This  pension  shall  be  regulated  according  to  the  third  para- 
graph of  Article  12  of  the  Law  of  June  9,  1853.3 

If  the  officer  is  restored  to  active  service  after  the  expiration 
of  his  mandate,  the  provisions  of  Article  3,  Paragraph  2,  and  Arti- 
cle 28  of  the  Law  of  June  9, 1853,  shall  apply  to  him. 

In  duties  where  the  rank  is  distinct  from  the  employment,  the 
officer,  by  the  acceptance  of  the  mandate  of  Deputy,  loses  the 
employment  and  preserves  the  rank  only. 

Art.  11.  Every  Deputy  appointed  or  promoted  to  a  salaried 
public  position  shall  cease  to  belong  to  the  Chamber  by  the  very 
fact  of  his  acceptance;  but  he  may  be  reflected,  if  the  office  which 
he  occupies  is  compatible  with  the  mandate  of  Deputy. 

Deputies  who  become  ministers  or  undersecretaries  of  state 
shall  not  be  required  to  seek  reelection. 

Art.  12.  The  following  officers  shall  not  be  elected  by  the 
arrondissement  or  the  colony  included  wholly  or  partially  in 
their  jurisdiction,  during  the  exercise  of  their  duties  or  for  six 
months  following  the  cessation  of  their  duties,  because  of  resig- 
nation, dismissal,  change  of  residence,  or  any  other  cause: 

lThsse  religious  officials  were  made  ineligible  for  8  years  by  Article  40  of  the 
Law  of  December  9,  1905,  on  the  separation  of  Church  and  State. 

2See  Law  of  December  26,  1887. 

'The  Law  of  March  29,  1897,  added  that,  for  officials  subject  (as  concerns  the 
pension)  to  the  Law  of  August  22, 1790,  this  pension  shall  be  regulated  at  the  rate 
of  one  thirtieth  (per  year  of  service)  of  the  pension  which  would  have  been  se 
tied  upon  them  for  30  years  of  service.  The  same  law  also  makes  these  provi- 
sions applicable  to  the  case  provided  for  by  the  second  paragraph  of  the  sole 
article  of  the  Law  of  December  26,  1887. 


538  APPENDIX  II 

(1)  The  first  presidents  and  members  of  the  courts  of  ap- 
peal. 

(2)  The  presidents,  vice-presidents,  titular  judges,  examining 
magistrates,  and  members  of  the  tribunals  of  first  instance,  as 
well  as  titular  justices  of  the  peace.1 

(3)  The  prefect  of  police,  the  prefects  and  secretaries  general 
of  prefectures;  the  governors,  directors  of  the  interior,  and  sec- 
retaries general  of  the  colonies. 

(4)  The  engineers  in  chief  and  of  the  arrondissement  and  road 
surveyors  in  chief  and  of  the  arrondissement. 

(5)  The  rectors  and  inspectors  of  academies. 

(6)  The  inspectors  of  primary  schools. 

(7)  The  archbishops,  bishops,  and  vicars  general.2 

(8)  The  paymasters  general  and  special  receivers  of  money. 

(9)  The  superintendents  of  direct  and  indirect  taxes,  of  regis- 
tration and  of  public  property,  and  of  posts. 

(10)  The  commissioners  and  inspectors  of  forests. 

The  sub-prefects  and  councilors  of  the  prefecture3  shall  not  be 
elected  in  any  of  the  arrondissements  of  the  department  in  which 
they  perform  their  duties. 

Art.  13.  Every  attempt  to  bind  deputies  by  instructions  is  null 
and  void. 

Art.  14.4 

Art.  15.    Deputies  shall  be  chosen  for  four  years. 

The  Chamber  shall  be  renewed  integrally. 

Art.  16.  In  case  of  vacancy  by  death,  resignation,  or  other- 
wise, a  new  election  shall  be  held  within  three  months  of  the  date 
when  the  vacancy  occurred.6 

In  case  of  option,6  the  vacancy  shall  be  filled  within  one  month. 

Art.  17.     Deputies  shall  receive  an  indemnity. 

The  legislative  indemnity  is  fixed  at  fifteen  thousand  (15,000) 


irThe  Law  of  March  30, 1902,  added  the  phrase  "as  well  as  titular  justices  of  the 
peace." 

'Implicitly  repealed  by  Article  40  of  the  Law  of  December  9,  1905,  on  the 
separation  of  Church  and  State. 

'The  Law  of  March  30,  1902,  added  the  phrase  "and  councilors  of  the  prefec- 
ture." 

4This  article  was  repealed  by  the  Law  of  June  16,  1885  (see  below,  p.  545), 
which  established  the  ballot  by  ticket  (scrutin  de  liste)  in  place  of  the  separate 
ballot  (scrutin  individuel)  or  system  of  single  districts.  It  was  reenacted  almost 
word  for  word  by  the  Law  of  February  13,  1889,  Article  2;  which  law  was  repealed 
by  the  Law  of  July  12,  1919  (see  below,  p.  546). 

•See  Article  7  of  the  Law  of  June  16,  1885,  p.  545- 

•7.  e.,  when  a  deputy  has  been  elected  from  two  or  more  districts,  and  decides 
which  one  he  will  serve. 


FRANCE  539 

francs l  per  year,  beginning  with  January  1 , 1907.  It  is  regulated 
by  the  second  paragraph  of  Article  96  and  by  Article  97  of  the 
Law  of  March  15,  1849,  as  well  as  by  the  provisions  of  the  Law  of 
February  16,  1872. 

Art.  18.  No  one  shall  be  elected  on  the  first  ballot  unless 
he  receives: 

(1)  An  absolute  majority  of  the  votes  cast. 

(2)  A  number  of  votes  equal  to  one-fourth  of  the  number  of 
voters  registered. 

On  the  second  ballot  a  plurality  is  sufficient.  In  case  of  an 
equality  of  votes,  the  oldest  is  elected.* 

Art.  19.3 

Art.  20.  The  voters  living  in  Algeria  in  a  place  not  yet  made 
a  commune  shall  be  registered  on  the  electoral  list  of  the  nearest 
commune. 

When  it  is  necessary  to  establish  electoral  districts,  either  for 
the  purpose  of  grouping  mixed  communes  in  each  of  which  the 
number  of  voters  is  insufficient,  or  to  bring  together  voters  liv- 
ing in  places  not  formed  into  communes,  the  decrees  for  fixing  the 
seat  of  these  districts  shall  be  issued  by  the  governor  general, 
upon  the  report  of  the  prefect  or  of  the  general  commanding  the 
division. 

Art.  21.* 

Art.  22.  Every  violation  of  the  prohibitive  provisions  of 
Article  3,  Paragraph  3,  of  the  present  law  shall  be  punished  by  a 
fine  of  from  16  francs  to  300  francs.  Nevertheless,  the  criminal 
courts  may  apply  Article  463  of  the  Penal  Code. 

The  provisions  of  Article  6  of  the  Law  of  July  7, 1874,  shall 
apply  to  the  political  electoral  lists.« 

The  Decree  of  January  29, 1871,  and  the  Laws  of  April  10, 1871, 
May  2,  1871,  and  February  18,  1873,  are  repealed. 

Paragraph  11  of  Article  15  of  the  Organic  Decree  of  Febru- 
ary 2,  1852,  is  also  repealed,  in  so  far  as  it  refers  to  the  Law  of 

!As  amended  by  the  Law  of  November  23, 1906;  before  the  passage  of  this  law 
deputies  and  senators  received  9,000  francs  per  year.  The  Law  of  February  16. 
1872,  prohibits  the  adding  of  the  indemnity  to  state  salaries  (plurality  of  offices). 
Article  96  of  the  Law  of  March  15, 1849,  treats  of  the  same  subject.  Article  97 
permits  the  seizure  of  the  entire  indemnity. 

This  article  should  be  considered  as  implicitly  repealed  by  Article  5  of  the  Law 
of  June  16,  1885,  which  repeats  the  terms  of  this  article  almost  word  for  word. 

'This  article,  concerning  the  representation  of  Algeria,  was  implicitly  repealed 
by  Article  3  of  the  Law  of  February  13,  1889  (see  below,  p.  546). 

*This  article,  concerning  the  representation  of  the  colonies,  was  implicitly  re- 
pealed by  Article  3  of  the  Law  of  February  13,  1889  (see  below,  p.  546). 

*The  Law  of  July  7, 1874,  concerns  the  municipal  electorate.  Article  6  of  that 
law  punishes  fraudulent  registrations  on  the  electoral  lists. 


540  APPENDIX  II 

May  21, 1836,  on  lotteries,  reserving,  however,  to  the  courts  the 
right  to  apply  Article  42  of  the  Penal  Code  to  convicted  persons. 

The  provisions  of  the  laws  and  decrees  now  in  force,  not  in 
conflict  with  the  present  law,  shall  continue  to  be  applied. 

Art.  23.  The  provisions  of  Article  12  of  the  present  law  by 
which  an  interval  of  six  months  must  elapse  between  the  cessa- 
tion of  duties  and  election  shall  not  apply  to  officials  other  than 
prefects  and  sub-prefects,  whose  duties  shall  have  ceased  either 
before  the  promulgation  of  the  present  law  or  within  20  days 
thereafter. 


LAW  OF  JULY  22,  18791 

ON  THE  SEAT  OF  THE  EXECUTIVE  POWER  AND  OF  THE  Two 
HOUSES  AT  PARIS 

Article  1.  The  seat  of  the  executive  power  and  of  the  two 
houses  shall  be  at  Paris. 

Art.  2.  The  Palace  of  the  Luxemburg  and  the  Palais-Bourbon 
are  assigned,  the  first  to  the  use  of  the  Senate  and  the  second  to 
that  of  the  Chamber  of  Deputies. 

Nevertheless,  each  of  the  houses  is  authorized  to  choose,  in 
the  city  of  Paris,  the  palace  which  it  wishes  to  occupy. 

Art.  3.  The  various  parts  of  the  palace  of  Versailles  now  occu- 
pied by  the  Senate  and  the  Chamber  of  Deputies  shall  preserve 
their  arrangements. 

Whenever,  according  to  Articles  7  and  8  of  the  Law  of  Feb- 
ruary 25, 1875,  on  the  organization  of  the  public  powers,  a  meet- 
ing of  the  National  Assembly  takes  place,  it  shall  sit  at  Versailles, 
in  the  present  hall  of  the  Chamber  of  Deputies. 

Whenever,  according  to  Article  9  of  the  Law  of  February  24, 
1875,  on  the  organization  of  the  Senate,  and  Article  12  of  the 
Constitutional  Law  of  July  16, 1875,  on  the  relations  of  the  public 
powers,  the  Senate  shall  be  called  upon  to  constitute  itself  a 
court  of  justice,  it  shall  indicate  the  town  and  place  where  it 
proposes  to  sit. 

Art.  4.  The  Senate  and  Chamber  of  Deputies  shall  sit  at 
Paris  on  and  after  November  3,  next. 

Art.  5.  The  Presidents  of  the  Senate  and  of  the  Chamber  of 
Deputies  are  charged  with  the  duty  of  securing  the  internal  and 
external  safety  of  the  houses  over  which  they  preside. 

For  this  purpose  they  shall  have  the  right  to  call  upon  the 
armed  forces  and  upon  all  the  authorities  whose  assistance  they 
consider  necessary. 

Such  requisitions  may  be  addressed  directly  to  all  officers, 

'Promulgated  in  the  Journal  officiel  of  July  23,  1879. 


FRANCE  541 

commanders,  or  officials,  who  are  bound  to  obey  immediately 
under  the  penalties  established  by  the  laws. 

The  Presidents  of  the  Senate  and  of  the  Chamber  of  Deputies 
may  delegate  to  the  questors  or  to  one  of  them  their  right  of  de- 
manding aid. 

Art.  6.  Every  petition  to  either  of  the  houses  shall  be  made 
and  presented  only  in  writing.  It  is  forbidden  to  present  them 
in  person  or  at  the  bar. 

Art.  7.  Every  violation  of  the  preceding  article,  every  prov- 
ocation, by  public  speeches,  by  writings,  or  printed  matter, 
posted  or  distributed,  to  a  crowd  upon  the  public  ways,  having 
for  its  object  the  discussion,  drawing  up,  or  carrying  to  the 
houses  or  to  one  of  them,  of  petitions,  declarations,  or  addresses 
shall  be  punished  by  the  penalties  enumerated  in  Paragraph  1 
of  Article  5  of  the  Law  of  June  7,  1848,  whether  or  not  any  re- 
sults follow  from  such  actions. 

Art.  8.  The  preceding  provisions  do  not  diminish  the  force 
of  the  Law  of  June  7,  1848,  on  riotous  assemblies. 

Art.  9.  Article  463  of  the  Penal  Code  is  applicable  to  the 
offenses  mentioned  in  the  present  law. 


LAW  OF  DECEMBER  9,  18841 

AMENDING  THE  ORGANIC  LAWS  ON  THE  ORGANIZATION  OF  THE 
SENATE  AND  THE  ELECTION  OF  SENATORS 

Article  1.  The  Senate  shall  be  composed  of  300  members, 
elected  by  the  departments  and  the  colonies. 

The  present  members,  without  any  distinction  between 
Senators  elected  by  the  National  Assembly  or  by  the  Senate  and 
those  elected  by  the  departments  and  colonies,  shall  retain  their 
offices  during  the  time  for  which  they  have  been  chosen. 

Art.  2.     The  Department  of  the  Seine  shall  elect  10  Senators. 

The  Department  of  the  Nord  shall  elect  8  Senators. 

The  Departments  of  Cotes-du-Nord,  Finistere,  Gironde,  Hle- 
et-Vilaine,  Loire,  Loire-Inferieure,  Pas-de-Calais,  Rhdne,  Sadne- 
et-Loire  and  Seine-Inferieure  shall  elect  5  Senators  each. 

Aisne,  Bouches-de-Rh6ne,  Charente-Inferieure,  Dordogne, 
Haute-Garonne,  Isere,  Maine-et-Loire,  Manche,  Morbihan, 
Puy-de-D6me,  Seine-et-Oise  and  Somme  shall  elect  4  Senators 
each. 

Ain,  Allier,  Ardeche,  Ardennes,  Aube,  Aude,  Aveyron,  Cal- 
vados, Charente,  Cher,  Correze,  Corse,  C6te-d'Or,  Creuse, 
Doubs,  Drdme,  Eure,  Eure-et-Loir,  Card,  Gers,  Herault,  Indre, 
Indre-et-Loire,  Jura,  Landes,  Loir-et-Cher,  Haute-Loire,  Loiret, 

'Promulgated  in  the  Journal  officiel  of  December  10,  1884. 


542  APPENDIX  II 

Lot,  Lot-€t-Garonne,  Marne,  Haute-Marne,  Mayenne,  Meurthe- 
et-Moselle,  Meuse,  Nievre,  Oise,  Orne,  Basses-Pyrenees,  Haute- 
Saone,  Sarthe,  Savoie,  Haute-Savoie,  Seine-et-Marne,  Deux- 
Sevres,  Tarn,  Var,  Vendee,  Vienne,  Harte-Vienne,  Vosges  and 
Yonne  shall  elect  3  Senators  each. 

Basses-Alpes,  Hautes-Alpes,  Alpes-Maritimes,  Ariege,  Cantal, 
Lozere,  Hautes-Pyrenees,  Pyrenees-Orientales,  Tarn-et-Garonne 
and  Vaucause  shall  elect  2  Senators  each. 

The  territory  of  Belfort,  the  three  departments  of  Algeria, 
the  four  colonies  of  Martinique,  of  Guadeloupe,  of  Reunion  and 
of  the  French  Indies  shall  elect  1  Senator  each.1 

Art.  3.  In  the  departments  where  the  number  of  senators 
is  increased  by  the  present  law,  the  increase  shall  take  effect  as 
vacancies  occur  among  the  irremovable  Senators. 

For  this  purpose,  within  a  week  after  the  vacancy  occurs,  it 
shall  be  determined  by  lot  in  public  session  what  department  shall 
be  called  upon  to  elect  a  Senator. 

This  election  shall  take  place  within  three  months  of  the  de- 
termination by  lot.  However,  if  the  vacancy  occurs  within  six 
months  preceding  the  triennial  election,  the  vacancy  shall  not  be 
filled  until  that  election. 

The  mandate  thus  conferred  shall  expire  at  the  same  time  as 
that  of  the  other  Senators  belonging  to  the  same  department. 

Art.  4.  No  one  shall  be  a  Senator  unless  he  is  a  French 
citizen  at  least  40  years  of  age  and  in  the  enjoyment  of  civil  and 
political  rights.2 

Members  of  families  that  have  reigned  in  France  are  ineligible 
to  the  Senate. 

Art.  5.  The  soldiers  of  the  land  and  naval  forces  shall  not  be 
elected  Senators. 

There  are  excepted  from  this  provision : 

(1)  The  marshals  of  France  and  admirals. 

(2)  The  general  officers  maintained  without  limit  of  age  in  the 
first  section  of  the  list  of  the  general  staff  and  not  provided  with  a 
command. 

(3)  The  general  officers  placed  in  the  second  section  of  the  list 
of  the  general  staff. 

(4)  Members  of  the  land  and  naval  forces  who  belong  either 
to  the  reserve  of  the  active  army  or  to  the  territorial  army. 

Art.  6.  Senators  shall  be  elected  by  scrutin  de  liste,  by  a  col- 
lege meeting  at  the  capital  of  the  department  or  of  the  colony  and 
composed : 

'This  redistribution  was  not  effective  until  after  the  death  of  the  last  irremov- 
able Senator  (see  Article  3  of  this  law). 

*By  the  Law  of  July  20,  1895,  no  one  may  become  a  member  of  either  house 
.unless  he  has  complied  with  the  law  regarding  military  service. 


FRANCE  543 

(1)  Of  the  deputies. 

(2)  Of  the  general  councilors. 

(3)  Of  the  councilors  of  the  arrondissement. 

(4)  Of  delegates  elected  from  among  the  voters  of  the  com- 
mune by  each  municipal  council. 

Councils  composed  of  10  members  shall  elect  1  delegate. 

Councils  composed  of  12  members  shall  elect  2  delegates. 

Councils  composed  of  16  members  shall  elect  3  delegates. 

Councils  composed  of  21  members  shall  elect  6  delegates. 

Councils  composed  of  23  members  shall  elect  9  delegates. 

Councils  composed  of  27  members  shall  elect  12  delegates. 

Councils  composed  of  30  members  shall  elect  15  delegates. 

Councils  composed  of  32  members  shall  elect  18  delegates. 

Councils  composed  of  34  members  shall  elect  21  delegates. 

Councils  composed  of  36  members  or  more  shall  elect  24 
delegates. 

The  municipal  council  of  Paris  shall  elect  30  delegates. 

In  the  French  Indies  the  members  of  the  local  councils  shall 
take  the  place  of  councilors  of  the  arrondissement.  The  munic- 
ipal councils  of  Pondichery  shall  elect  5  delegates.  The  mu- 
nicipal council  of  Karikal  shall  elect  3  delegates.  All  of  the  other 
communes  shall  elect  2  delegates  each.1 

Art.  7.     Members  of  the  Senate  shall  be  elected  for  9  years. 

The  Senate  shall  be  renewed  every  3  years  according  to  the 
order  of  the  present  series  of  departments  and  colonies. 

Art.  8.  Articles  2  (Paragraphs  1  and  2),  3,  4, 5,  8, 14, 16, 19, 
and  23  of  the  Organic  Law  of  August  2, 1875,  on  the  elections  of 
Senators  are  amended  as  follows: 

Article  2  (Paragraphs  1  and  2).  In  each  municipal  council  the  election  of 
delegates  shall  take  place  without  debate  and  by  secret  ballot,  by  tcrutin  de  litte, 
and  by  an  absolute  majority  of  votes  cast. 

After  two  ballots  a  plurality  shall  be  sufficient,  and  in  case  of  an  equality  of 
votes  the  oldest  is  elected. 

The  procedure  and  method  shall  be  the  same  for  the  election  of  alternates. 

Councils  having  1,  2  or  3  delegates  to  choose  shall  elect  1  alternate. 

Those  choosing  6  or  9  delegates  shall  elect  2  alternates. 

Those  choosing  12  or  15  delegates  shall  elect  3  alternates. 

Those  choosing  18  or  21  delegates  shall  elect  4  alternates. 

Those  choosing  24  delegates  shall  elect  5  alternates. 

The  municipal  council  of  Paris  shall  elect  8  alternates. 

The  alternates  shall  take  the  place  of  delegates  in  case  of  refusal  or  inability  to 
serve,  in  the  order  determined  by  the  number  of  votes  received  by  each  of  them. 

Art.  3.  In  communes  where  the  duties  of  the  municipal  council  are  performed 
by  a  special  delegation  organized  by  virtue  of  Article  44  of  the  LAW  of  April  5. 
1884,  the  senatorial  delegates  and  alternates  shall  be  chosen  by  the  former 
council. 

iAs  amended  by  the  Law  of  December  17,  1908,  which  repealed  a  last  para- 
graph worded  as  follows:  "The  balloting  shall  take  place  at  the  seat  of  goven 
ment  of  each  district." 


544  APPENDIX  II 

Art.  4.  If  the  delegates  were  not  present  at  the  election,  notice  shall  be  given 
them  by  the  mayor  within  24  hours.  They  shall,  within  5  days,  notify  the  pre- 
fect of  their  acceptance.  In  case  of  refusal  or  silence,  they  shall  be  replaced  by 
the  alternates,  who  shall  then  be  placed  upon  the  list  as  the  delegates  of  the 
commune. 

Art.  5.  The  official  report  of  the  election  of  delegates  and  alternates  shall  be 
transmitted  at  once  to  the  prefect.  It  shall  state  the  acceptance  or  refusal  of 
the  delegates  and  alternates,  as  well  as  the  protests  raised,  by  one  or  more  mem- 
bers of  the  municipal  council,  against  the  legality  of  the  election.  A  copy  of  this 
official  report  shall  be  posted  on  the  door  of  the  town  hall. 

Art.  8.  Protests  concerning  the  election  of  delegates  or  of  alternates  shall  be 
decided,  subject  to  an  appeal  to  the  Council  of  State,  by  the  council  of  the  pre- 
fecture, and,  in  the  colonies,  by  the  privy  council. 

Delegates  whose  election  is  annulled  because  they  do  not  fulfill  some  one  of 
the  conditions  demanded  by  law,  or  because  of  informality,  shall  be  replaced  by 
the  alternates. 

In  case  the  election  of  a  delegate  and  of  an  alternate  is  annulled,  or  in  the  case 
of  the  refusal  or  death  of  both  of  them  after  their  acceptance,  new  elections  shall 
be  held  by  the  municipal  council  on  a  day  fixed  by  an  order  of  the  prefect. 

Art.  14.  The  first  ballot  shall  begin  at  8  o'clock  in  the  morning  and  close  at 
noon.  The  second  shall  begin  at  2  o'clock  and  close  at  5  o'clock.  The  third 
shall  begin  at  7  o'clock  and  close  at  10  o'clock.  The  results  of  the  balloting  shall 
be  canvassed  by  the  bureau  and  announced  immediately  by  the  president  of  the 
electoral  college. 

Art.  16.  Political  meetings  for  the  nomination  of  Senators  may  be  held  from 
the  date  of  the  promulgation  of  the  decree  summoning  the  electors  up  to  the  day 
of  the  election,  inclusive. 

The  declaration  prescribed  by  Article  2  of  the  Law  of  June  30, 1881,1  shall  be 
made  by  two  voters  at  least. 

The  forms  and  regulations  of  this  article,  as  well  as  those  of  Article  3,  shall  be 
observed. 

The  members  of  Parliament  elected  or  electors  in  the  department,  the  sena- 
torial electors,  delegates  and  alternates,  and  the  candidates  or  their  represent- 
atives may  alone  be  present  at  these  meetings. 

The  municipal  authorities  shall  see  to  it  that  no  other  person  is  admitted. 

Delegates  and  alternates  shall  present  as  a  means  of  identification  a  certificate 
from  the  mayor  of  the  commune;  candidates  or  their  representatives,  a  certifi- 
cate from  the  official  who  shall  have  received  the  declaration  mentioned  in  Para- 
graph 2. 

Art.  19.  Every  attempt  at  corruption  or  constraint  by  the  employment  of 
means  enumerated  in  Articles  177  and  following  of  the  Penal  Code,  to  influence 
the  vote  of  an  elector  or  to  keep  him  from  voting,  shall  be  punished  by  imprison- 
ment of  from  three  months  to  two  years  and  by  a  fine  of  from  50  to  500  francs  or 
by  either  of  these  penalties. 

Article  463  of  the  Penal  Code  is  applicable  to  the  penalties  provided  by  the 
present  article. 

Art.  23.  Vacancies  caused  by  the  death  or  resignation  of  Senators  shall  be 
filled  within  three  months;  however,  if  the  vacancy  occurs  within  six  months 
preceding  the  triennial  elections,  it  shall  not  be  filled  until  those  elections. 


Art.  9.     The  following  are  repealed : 

(1)  Articles  1-7  of  the  Law  of  February  24,  1875,  on  the  or- 
ganization of  the  Senate. 


'See  above,  p.  532,  note  2. 


FRANCE  545 

(2)  Articles  24  and  25  of  the  Law  of  August  2,  1875,  on  the 
elections  of  Senators.1 

LAW  OF  JUNE  16,  1885* 
AMENDING  THE  ELECTORAL  LAW 
Articles  1-3.3 

Art.  4.  Members  of  families  that  have  reigned  in  France  are 
ineligible  to  the  Chamber  of  Deputies.4 

Art.  5.  No  one  shall  be  elected  on  the  first  ballot  unless  he 
receives : 

(1)  An  absolute  majority  of  the  votes  cast. 

(2)  A  number  of  votes  equal  to  one-fourth  of  the  total  num- 
ber of  voters  registered. 

On  the  second  ballot  a  plurality  shall  be  sufficient. 

In  case  of  an  equality  of  votes,  the  oldest  of  the  candidates  is 
elected. 

Art.  6.  Subject  to  the  case  of  a  dissolution  provided  for  and 
regulated  by  the  constitution,  the  general  elections  shall  take 
place  within  the  60  days  preceding  the  expiration  of  the  powers 
of  the  Chamber  of  Deputies. 

Art.  7.  Vacancies  which  occur  in  the  six  months  preceding 
the  renewal  of  the  Chamber  shall  not  be  filled. 

LAW  OF  DECEMBER  26,  1887* 
ON  PARLIAMENTARY  INCOMPATIBILITIES 

Until  the  passage  of  a  special  law  on  parliamentary  incom- 
patibilities, Articles  8  and  9  of  the  Law  of  November  20, 1875, 
shall  be  applicable  to  senatorial  elections.6 

Every  officer  affected  by  this  provision  who  has  had  20  years 

irThe  transitional  provisions  of  this  law  are  omitted,  because  they  are  practically 
repeated  in  the  Law  of  December  26, 1887,  on  parliamentary  incompatibilities 
(see  below,  this  page). 

Promulgated  in  the  Journal  officiel  of  June  17,  1885. 

'Articles  1,  2,  and  3  of  this  law  were  repealed  by  the  Law  of  February  13, 1889, 
which  in  turn  was  repealed  by  the  Law  of  July  12,  1919  (see  below,  p.  546). 

4For  similar  provisions  regarding  the  Presidency  of  the  Republic  and  the  Sen- 
ate, see  Article  2  of  the  Law  of  August  14, 1884,  and  Article  4  of  the  Law  of  De- 
cember 9,  1884  (see  above,  pp.  529,  542).  Article  4  of  the  Law  of  June  22,  1886, 
prohibited  every  elective  office  to  the  members  of  families  that  have  reigned 
in  France. 

5Promulgated  in  the  Journal  officiel  of  December  28,  1887. 

•See  this  law,  p.  534  above;  see  also  Article  20  of  the  Law  of  August  2, 1875, 
p.  533  above. 


546  APPENDIX  II 

of  service  and  is  50  years  of  age  at  the  time  of  his  acceptance 
of  the  office  of  Senator,  may  establish  his  rights  to  a  propor- 
tional retiring  pension,  which  shall  be  governed  by  the  tnird 
paragraph  of  Article  12  of  the  Law  of  June  9,  1853. 

LAW  OF  FEBRUARY  13,  18891 

REESTABLISHING  SINGLE  DISTRICTS  FOR  THE  ELECTION  OF 

DEPUTIES 

LAW  OF  JULY  17,  1889' 
ON  MULTIPLE  CANDIDATES 

Article  1.    No  one  shall  be  a  candidate  hi  more  than  one 
district. 
Arts.  2-6.3 

LAW  OF  JULY  12,  1919* 

To  AMEND  THE  ORGANIC  LAWS  ON  ELECTION  OF  DEPUTIES 

AND  TO  ESTABLISH  SCRUTIN  DE  LISTE  WITH  PROPORTIONAL 

REPRESENTATION 

Article  1.  Members  of  the  Chamber  of  Deputies  shall  be 
elected  by  scrutin  de  liste  by  departments. 

Art.  2.  Each  department  shall  elect  one  deputy  for  every 
75,000  inhabitants  of  French  nationality,  a  remainder  exceeding 
37,500  giving  the  right  to  an  additional  Deputy. 

Each  department  shall  elect  at  least  three  Deputies. 

Provisionally  and  until  a  new  census  has  been  taken  each 
department  shall  have  the  same  number  of  seats  [in  the  Cham- 
ber of  Deputies]  as  at  present. 

Art.  3.  Each  department  shall  form  a  single  electoral  area. 
Provided  that  when  the  number  of  Deputies  to  be  elected  by  a 
department  is  greater  than  six  the  department  may  be  divided 
into  electoral  areas  each  of  which  shall  be  entitled  to  elect  at 
least  three  Deputies.  Such  division  shall  be  enacted  by  law. 

Notwithstanding  the  foregoing  provision  the  Departments 

'Promulgated  in  the  Journal  officid  of  February  14,  1889;  repealed  by  the  Law 
of  July  12,  1919  (see  below,  this  page). 

'Promulgated  in  the  Journal  officiel  of  July  18,  1889. 

'Formalities  imposed  upon  candidates  and  penalties  for  their  violation,  omit- 
ted here. 

4Promulgated  in  the  Journal  officiel  of  July  12,  1919.  This  translation  is 
taken  from  Representation,  No.  34,  October,  1919,  pp.  18-20.  A  practically 
identical  translation  is  found  in  Sait,  Government  and  Politics  of  France,  p.  450 
(Yonkers,  1920).  For  a  discussion  of  this  law,  see  above,  pp.  105-108. 


FRANCE  547 

of  the  Nord,  the  Pas  de  Calais,  the  Aisne,  the  Somme,  the  Marne, 
the  Ardennes,  the  Meurthe-et-Moselle,  and  the  Vosges  shall 
not  be  divided  for  the  next  election. 

Art.  4.  No  person  can  be  a  candidate  in  more  than  one  electoral 
area,  and  the  law  of  July  17,  1889,  relating  to  multiple  candi- 
datures shall  apply  to  elections  under  this  act;  declarations  of 
candidature  may  nevertheless  be  either  individual  or  collective. 

Art.  5.  Lists  are  constituted  for  any  particular  electoral  area  by 
groups  of  candidates  who  sign  a  legally  authenticated  declaration. 

Declarations  of  candidature  shall  indicate  the  order  in  which 
candidates  are  presented. 

If  the  declarations  of  candidature  are  presented  on  separate 
sheets  they  must  specify  the  candidates  in  conjunction  with 
whom  the  signatory  or  signatories  stand  and  who  agree  by 
joint  and  duly  authenticated  declaration  to  put  the  names  of 
the  signatories  on  the  same  list  as  their  own. 

A  list  shall  not  include  a  number  of  candidates  greater  than 
the  number  of  deputies  to  be  elected  in  the  electoral  area.  An 
individual  candidature  shall  be  considered  as  forming  a  separate 
list.  In  such  case  the  declaration  of  candidature  shall  be  sup- 
ported by  one  hundred  electors  of  the  electoral  area,  whose 
signatures  shall  be  authenticated  and  shall  not  be  used  in  sup- 
port of  more  than  one  candidature. 

Art.  6.  The  lists  shall  be  deposited  at  the  prefecture  after  the 
commencement  of  the  electoral  period  and  at  latest  five  days 
before  the  day  of  the  election. 

The  list  and  the  title  of  the  list  shall  be  registered  by  the 
prefecture. 

Registration  shall  be  refused  to  any  list  bearing  more  names 
than  there  are  deputies  to  elect  or  bearing  the  name  of  any 
candidate  belonging  to  another  list  already  registered  in  the 
electoral  area  unless  such  candidate  has  previously  withdrawn 
his  name  in  accordance  with  the  procedure  laid  down  in  Article 
Seven. 

Registration  shall  be  accorded  only  to  the  names  of  candi- 
dates who  have  made  a  declaration  in  conformity  with  the 
terms  of  Articles  4  and  5. 

A  provisional  acknowledgment  of  the  deposit  of  a  list  shall 
be  given  to  each  of  the  candidates  who  compose  it. 

The  definite  receipt  shall  be  delivered  within  the  next  twenty- 
four  hours. 

Art.  7.  A  candidate  inscribed  upon  a  list  cannot  be  struck  off 
unless  he  notifies  the  prefecture  of  his  desire  to  withdraw  by 
statutory  declaration  (par  exploii  d'huissier)  five  days  before 
the  day  of  the  election. 

Art.  8.  Vacancies  on  any  list  may  be  filled  at  latest  nve  days 


548 


APPENDIX  II 


before  the  day  of  the  election  by  the  names  of  new  candidates 
who  make  the  declaration  of  candidature  prescribed  by  Article  5. 

Art.  9.  Two  days  before  the  commencement  of  the  poll  the 
prefectoral  authorities  shall  cause  the  registered  candidatures  to 
be  posted  on  the  doors  of  the  polling-booths. 

Art.  10.  Any  candidate  who  obtains  an  absolute  majority 
shall  be  declared  elected  provided  that  the  number  of  seats  to 
be  filled  is  not  exceeded.1  Any  seats  that  remain  to  be  filled 
shall  be  allotted  in  accordance  with  the  following  procedure: 

The  electoral  quotient  shall  be  determined  by  dividing  the 
number  of  voters,  excluding  blank  or  spoiled  ballots,  by  the 
number  of  deputies  to  be  elected. 

The  average  figure  for  each  list  shall  be  determined  by  divid- 
ing by  the  number  of  its  candidates  the  total  number  of  votes 
which  they  have  obtained. 

To  each  list  shall  be  allotted  a  number  of  seats  equal  to  the 
number  of  times  which  its  average  figure  contains  the  electoral 
quotient. 

The  remaining  seats,  if  any,  shall  be  allotted  to  the  list  with 
the  highest  average  figure. 

Within  each  list  the  seats  obtained  shall  be  allotted  to  the 
candidates  who  have  received  most  votes. 

Art.  11.  An  independent  candidate,  provided  that  he  has  not 
obtained  an  absolute  majority  of  the  votes,  shall  not  be  eligible 
for  allotment  of  a  seat  until  the  candidates  belonging  to  other 
lists  who  have  obtained  more  votes  than  he  has  obtained  shall 
have  been  declared  elected. 

Art.  12.  In  case  of  equality  of  votes  the  eldest  candidate  shall 
be  elected. 


1The  proviso  contained  in  the  last  words  of  this  paragraph  becomes  necessary 
owing  to  the  fact  that  each  voter  has  as  many  votes  as  there  are  deputies  to  be 
elected,  and  that  cross-voting  (panachage)  is  permitted.  Thus  the  following 
might  be  the  result  of  an  election  of  five  deputies  by  10,000  voters.  The  abso- 
lute majority  is  5001.  Two  lists  are  presented  with  candidates  A,  B,  C,  D,  E, 
and  P,  Q,  R,  S,  T,  respectively,  and  the  voting  is  as  shown: 


10,000  voters 
(by  groups) 

Votes  received  by  candidates 

A       B       C       D       E 

P       Q       R        S       T 

Group  of            4900 

"       "               100 
"       "             4600 
400 

4900  4900  4900  4900  4900 
i  fift     i  no     i  fifi  i  fin 

40      30      20      10  

4600  4600  4600  4600  4600 

J.Ofi  J.fifi  Afifi  J.OO 

100      80       60      40     120 

Totals                10,000 

5100  5080  5060  5040  5020 

5040  5030  5020  5010  4600 

Thus  nine  candidates  out  of  ten  can,  if  there  is  cross- voting,  receive  an  "abso- 
lute majority,"  even  though  there  are  only  five  seats  to  distribute. 


FRANCE  549 

If  more  lists  than  one  have  an  equal  title  to  a  seat,  the  seat 
is  allotted  to  that  one  of  the  candidates  eligible  who  has  re- 
ceived most  votes  or,  in  case  of  equality  of  votes,  to  the  eldest 
candidate.  A  candidate  shall  not  be  declared  elected  unless 
the  number  of  votes  obtained  by  him  exceeds  half  the  average 
of  the  votes  of  the  list  to  which  he  belongs. 

Art.  13.  When  the  number  of  voters  is  not  greater  than  half 
the  number  of  registered  electors,  or  if  no  list  has  obtained  the 
electoral  quota,  no  candidate  shall  be  declared  elected,  and  the 
electors  of  the  area  shall  be  summoned  to  a  new  election  on 
the  fifteenth  day  following.  If  at  this  new  election  no  list 
obtains  the  electoral  quotient,  the  seats  shall  be  assigned  to  the 
candidates  who  have  received  most  votes. 

Art.  14.  The  reports  on  the  proceedings  at  the  election  in  each 
commune  shall  be  prepared  in  duplicate.  One  copy  shall  be 
deposited  at  the  secretariat  of  the  Mairie;  the  other  shall  be 
at  once  posted  under  sealed  cover  addressed  to  the  prefect  for 
transmission  to  the  counting  commission  (commission  de 
receusement) . 

Art.  15.  The  votes  shall  be  counted  for  each  electoral  area  at 
the  chief  town  of  the  department  in  public  session  at  latest  on  the 
Wednesday  following  the  day  of  the  poll.  The  operation  shall 
be  performed  by  a  commission  composed  of  the  president  of  the 
civil  tribunal,  and  the  president  and  the  four  members  of  the 
general  council,  not  being  candidates  at  the  election,  who  have 
longest  held  office.  In  case  of  equal  length  of  office  the  eldest 
shall  be  appointed. 

If  the  president  of  the  civil  tribunal  is  unable  to  serve,  his 
place  shall  be  filled  by  the  vice-president  and  failing  him  by  the 
senior  judge.  In  case  of  inability  to  serve,  the  places  of  the 
members  of  the  general  council  shall  be  filled  by  other  members 
of  the  same  body  in  order  of  seniority. 

The  operations  of  the  count  shall  be  recorded  in  a  report. 

Art.  16.  In  case  of  a  vacancy  through  death,  resignation,  or 
otherwise,  an  election  shall  take  place  within  a  period  of  three 
months  counting  from  the  day  on  which  the  vacancy  took  place. 

Art.  17.  Vacancies  occurring  within  the  six  months  preceding 
the  next  general  election  of  the  Chamber  shall  not  be  filled. 

Art.  18.  The  present  act  shall  apply  to  the  departments  of 
Algeria  and  to  the  colonies  which  shaft  retain  their  present  num- 
ber of  Deputies. 

Further  legislation  shall  make  provision  for  the  application  of 
the  present  act  to  the  territory  of  Belfort  and  for  the  redis- 
tribution of  Alsace  and  Lorraine. 

Art.  19.  Any  previous  legislation  conflicting  with  the  present 
act  is  hereby  repealed. 


APPENDIX  III 
ITALY 

1.  HISTORICAL  NOTE 

"The  victorious  campaigns  of  Napoleon  in  1796  and  1797  con- 
stituted the  starting  point  of  a  series  of  political  revolutions  in 
Italy  which  ended  in  the  successive  annexation  of  all  the  parts 
of  Italy  to  the  Kingdom  of  Sardinia  and  the  formation  of  the 
Kingdom  of  Italy  in  1861.  From  1797  to  1849  there  were  23 
constitutions  or  statutes  in  force  in  Italy.  Of  all  of  these  the 
Statute  fondamentale  of  the  Kingdom  of  Sardinia  of  March  4, 
1848,  was  the  only  one  to  survive  and  it  still  forms  the  consti- 
tution of  the  Kingdom  of  Italy.  This  Statute,  promised  by 
King  Charles  Albert  in  a  famous  proclamation  of  February  18, 
1848,  was  published  the  following  month  and  was  put  into  force 
in  the  annexed  territories  by  successive  decrees.1  Many  of  the 
provisions  of  this  Statute  have  fallen  into  disuse,  although  not 
expressly  repealed.  In  this  number  are  generally  classed 
Articles  1,  28  (Paragraph  2),  53,  62  (Paragraph  2),  76,  77,  and 
80.  A  Law  of  March  17,  1861,  conferred  on  Victor  Emmanuel 
II,  and  his  successors  the  title  of  King  of  Italy,  and  a  Law  of  Feb- 
ruary 3,  1871,  transferred  the  capital  of  the  Kingdom  to  Rome. 
The  position  of  the  Holy  See  is  governed  by  the  Law  of  May  13, 
1871,  called  the  "Law  of  Guarantees,"  which  was  declared  to  be 
a  fundamental  law  of  the  Kingdom  by  the  Council  of  State 
(March  2,  1878).  Nevertheless,  since  the  Holy  See  has  not 
ceased  to  protest  against  the  annexation  of  the  Papal  States, 
this  law  has  remained  the  unilateral  work  of  the  Italian  Gov- 
ernment."2 


1Lombardy,  Decree  of  December  7,  1859;'  Emilia,  Decree  of  March  18,  1860. 
and  Law  of  April  15,  1860;  Tuscany,  Decree  of  March  22,  and  Law  of  April 
15,  1860;  Sicily,  Marches,  Umbria  and  Neapolitan  Provinces,  Law  of  December 
17,  1860;  Province  of  Venice,  Decree  of  July  28, 1866;  Roman  Provinces,  Decree 
of  October  9,  and  Law  of  December  31,  1870. 

*This  introductory  paragraph  is  quoted  from  Wright,  The  Constitutions  of 
the  States  at  War,  19U-1918,  p.  337  (Washington,  Government  Printing  Office, 
1919),  and  is  based  upon  Dareste,  Les  constitutions  modernes,  Vol.  I,  pp.  672- 
674  (3d  edition,  Paris,  1910). 

550 


ITALY  551 


2.  FUNDAMENTAL  STATUTE  OF  MARCH  4,  18481 

We,  Charles  Albert,  by  the  Grace  of  God,  King  of  Sardinia, 
Cyprus,  and  Jerusalem,  Duke  of  Savoy,  Genoa,  etc.,  etc.,  Prince 
of  Piedmont,  etc.,  etc.,  etc.,  with  the  fidelity  of  a  king  and  the 
affection  of  a  father,  are  about  to-day  to  fulfill  all  that  we  prom- 
ised our  most  beloved  subjects  in  our  proclamation  of  the 
eighth  of  last  February,  whereby  we  desired  to  show,  in  the 
midst  of  the  extraordinary  events  then  transpiring  through- 
out the  country,  how  much  our  confidence  in  our  subjects  in- 
creased with  the  gravity  of  the  situation,  and  how,  consulting 
only  the  impulse  of  our  heart,  we  had  fully  determined  to  make 
their  condition  conform  to  the  spirit  of  the  times  and  to  the 
interests  and  dignity  of  the  nation. 

We,  believing  that  the  broad  and  permanent  representative 
institutions  established  by  this  Fundamental  Statute  are  the 
surest  means  of  cementing  the  bonds  of  indissoluble  affection 
that  bind  to  our  Italian  crown  a  people  that  has  so  often  given 
us  ample  proof  of  their  faithfulness,  obedience,  and  love,  have 
determined  to  sanction  and  promulgate  this  Statute,  in  the 
belief  that  God  will  bless  our  good  intentions,  and  that  this 
free,  strong,  and  happy  nation  will  ever  show  itself  more  de- 
serving of  its  ancient  fame  and  thus  merit  a  glorious  future. 

Therefore,  we,  with  our  full  knowledge  and  royal  authority 
and  with  the  advice  of  our  Council,  have  ordained  and  do 
hereby  ordain  and  declare  in  force  the  fundamental  perpetual 
and  irrevocable  Statute  and  law  of  the  monarchy  as  follows: 

Article  1.  The  Catholic,  Apostolic,  and  Roman  religion  is  the 
only  religion  of  the  state.2  Other  cults  now  existing  are  toler- 
ated, in  conformity  with  the  law. 

Art.  2.  The  state  is  governed  by  a  representative  mon- 
archical government.  The  throne  is  hereditary  according  to 
the  Salic  Law.3 

Art.  3.  The  legislative  power  shall  be  exercised  collectively 

!This  translation  is  taken  from  Wright,  op.  tit.,  pp.  337  ff.,  who  borrows  from 
Dodd,  Modern  Constitutions,  Vol.  II.  pp.  5-16,  whose  translation  is  based  on 
that  by  S.  M.  Lindsay  and  L.  S.  Rowe  in  the  Supplement  to  the  Annals  of  the 
American  Academy  of  Political  and  Social  Science,  November,  1894  (Philadel- 
phia, 1894).  French  translation  in  Dareste,  op.  tit.,  pp.  674-685.  German 
translation  in  Paul  Posener,  Die  Staatnerfastungen  det  ErdbalU.  pp.  642-656 
(Charlottenburg.  1909). 

'See  below,  the  Law  of  May  13,  1871.  The  Law  of  June  19,  1848  reads  as 
follows-  "Difference  of  religion  shall  entail  no  distinction  as  regards  the  enjoy- 
ment of  civil  and  political  rights  and  eligibility  to  civil  and  military  positions. 

'Law  of  July  2,  1890,  on  the  status  of  the  royal  family. 


552  APPENDIX  III 

by  the  King  and  two  houses,  the  Senate  and  the  Chamber  of 
Deputies.1 

Art.  4.  The  person  of  the  King  is  sacred  and  inviolable. 

Art.  5.  To  the  King  alone  belongs  the  executive  power.  He 
is  the  supreme  head  of  the  state;  commands  all  land  and  naval 
forces;  declares  war;  makes  treaties  of  peace,  alliance,  com- 
merce and  other  treaties,  communicating  them  to  the  houses 
as  soon  as  the  interest  and  security  of  the  state  permit,  ac- 
companying such  notice  with  opportune  explanations.  Trea- 
ties involving  financial  obligations  or  alterations  of  the  territory 
of  the  state  shall  not  take  effect  until  after  they  have  received 
the  approval  of  the  houses. 

Art.  6.  The  King  appoints  to  all  of  the  offices  of  the  state, 
and  makes  the  necessary  decrees  and  regulations  for  the  ex- 
ecution of  the  laws,  without  suspending  their  execution  or 
granting  exemptions. 

Art.  7.  The  King  alone  approves  and  promulgates  the  laws. 

Art.  8.  The  King  may  grant  pardons  and  commute  sentences.2 

Art.  9.  The  King  convokes  the  two  houses  every  year.  He 
may  prorogue  their  sessions  and  dissolve  the  Chamber  of  Depu- 
ties, but  in  the  latter  case  he  shall  convoke  another  within  a 
period  of  four  months. 

Art.  10.  The  initiative  in  legislation  shall  belong  both  to  the 
King  and  to  each  of  the  two  houses.  All  bills,  however,  levy- 
ing imposts  or  contributions  or  approving  the  budgets  or  ac- 
counts of  the  state  shall  first  be  presented  to  the  Chamber  of 
Deputies. 

Art.  11.  The  King  attains  his  majority  upon  the  completion 
of  his  18th  year. 

Art.  12.  During  the  King's  minority,  the  prince  who  is  his 
nearest  relative  in  the  order  of  succession  to  the  throne,  shall 
be  regent  of  the  Kingdom,  provided  he  be  21  years  of  age. 

Art.  13.  Should  the  prince  upon  whom  the  regency  devolves 
be  still  in  his  minority  and  this  duty  pass  to  a  more  distant  rela- 
tive, the  regent  who  actually  takes  office  shall  continue  in  the 
regency  until  the  King  becomes  of  age. 

Art.  14.  In  the  absence  of  male  relatives  the  regency  shall 
devolve  upon  the  Queen  Mother. 

Art.  15.  In  default  also  of  a  Queen  Mother,  the  regent  shall 
be  elected  by  the  legislative  houses,  convened  within  10  days 
by  the  ministers. 


*In  case  of  political  necessity,  the  Italian  Government  frequently  takes  legis- 
lative measures  by  means  of  law  decrees,  and  this  procedure  is  considered  justified 
by  the  commentators  on  this  Statute. 

*The  King  also  exercises  the  right  of  amnesty  (Code  of  Penal  Procedure,  Ar- 
ticle 830). 


ITALY  553 

Art.  16.  The  preceding  provisions  with  reference  to  the  re- 
gency are  applicable  in  case  the  King  who  has  attained  his 
majority  is  physically  incapable  of  reigning.  Under  such  cir- 
cumstances, if  the  heir  presumptive  to  the  throne  be  18  years 
of  age,  he  shall  be  regent  of  full  right. 

Art.  17.  The  Queen  Mother  shall  be  guardian  of  the  King 
until  he  has  completed  his  7th  year;  from  this  time  his  guard- 
ianship shall  pass  into  the  hands  of  the  regent. 

Art.  18.  All  rights  pertaining  to  the  civil  power  in  matters  of 
ecclesiastical  benefices  and  in  the  execution  of  all  regulations 
whatsoever  coming  from  foreign  countries  shall  be  exercised  by 
the  King.1 

Art.  19.  The  civil  list  of  the  crown  shall  remain,  during  the 
present  reign,  at  an  amount  equal  to  the  average  for  the  past 
10  years. 

The  King  shall  continue  to  have  the  use  of  the  royal  palaces, 
villas,  and  gardens  and  their  appurtenances,  and  also  of  all 
chattels  without  distinction  pertaining  to  the  crown,  of  which 
a  speedy  inventory  shall  be  made  by  a  responsible  ministry. 

In  future  the  above-mentioned  civil  list  shall  be  fixed  for  the 
duration  of  each  reign  by  the  first  legislature  subsequent  to  the 
King's  accession  to  the  throne.2 

Art.  20.  The  property  which  the  King  now  possesses  in  his 
own  right,  together  with  that  to  which  he  may  hereafter  ac- 
quire title,  either  for  a  consideration  or  gratuitously  in  the 
course  of  his  reign,  shall  form  his  private  patrimony. 

The  King  may  dispose  of  his  private  patrimony  either  by 
acts  during  his  life  or  by  will,  without  being  bound  by  the  pro- 
visions of  the  civil  law  which  limit  the  amount  disposable.  In 
all  other  cases,  the  King's  patrimony  shall  be  subject  to  the 
laws  that  govern  other  property. 

Art.  21.  The  law  shall  provide  an  annual  civil  list  for  the 
hereditary  prince  when  he  has  attained  his  majority,  and  even 
earlier  in  case  of  his  marriage;  for  the  allowances  to  the  princes 
of  the  royal  family  and  of  royal  blood,  under  the  above-men- 
tioned conditions;  for  the  dowries  of  the  princesses  and  for  the 
dowries  of  the  queens. 

Art.  22.  Upon  ascending  the  throne,  the  King,  in  the  pres- 
ence of  the  houses,  in  joint  session,  shall  take  the  oath  to  ob- 
serve faithfully  the  present  Statute. 

Art.  23.  The  regent,  before  entering  on  the  duties  of  that 


irThe  clause,  "regulations  from  foreign  countries,"  refers  to  papal  decrees, 
ecclesiastical  ordinances  and  orders;  at  the  time  of  the  adoption  of  this  Statute 
Rome  was  foreign  territory. 

*At  present  the  civil  list  has  been  fixed  at  16,050,000  lire. 


554  APPENDIX  III 

office,  shall  take  the  oath  to  be  faithful  to  the  King  and  to  ob- 
serve faithfully  this  Statute  and  the  laws  of  the  state. 

THE  RIGHTS  AND  DUTIES  OF  CITIZENS 

Art.  24.  All  inhabitants  of  the  Kingdom,1  whatever  their 
rank  or  title,  are  equal  before  the  law. 

All  ishall  equally  enjoy  civil  and  political  rights  and  shall  be 
eligible  to  civil  and  military  office,  except  as  otherwise  provided 
by  law. 

Art.  25.  All  shall  contribute  without  distinction  to  the  bur- 
dens of  the  state,  in  proportion  to  their  possessions. 

Art.  26.  Individual  liberty  is  guaranteed. 

No  one  shall  be  arrested  or  brought  to  trial  except  in  the 
cases  provided  by  law  and  in  the  forms  which  it  prescribes. 

Art.  27.  The  domicile  is  inviolable.  No  domiciliary  search 
shall  take  place  except  by  virtue  of  law  and  in  the  forms  which 
it  prescribes. 

Art.  28.  The  press  shall  be  free,  but  the  law  may  suppress 
abuses  of  this  freedom.1 

Nevertheless,  bibles,  catechisms,  liturgical  and  prayer  books 
shall  not  be  printed  without  the  previous  consent  of  the  bishop.3 

Art.  29.  All  property,  without  exception,  is  inviolable. 

Nevertheless,  when  the  public  interest,  legally  ascertained,  re- 
quires it,  a  person  may  be  bound  to  give  it  up,  in  whole  or  in  part, 
upon  payment  of  a  just  indemnity  in  accordance  with  the  law.4 

Art.  30.  No  tax  shall  be  levied  or  collected  without  the  con- 
sent of  the  houses  and  the  approval  of  the  King. 

Art.  31.  The  public  debt  is  guaranteed. 

All  obligations  of  the  state  to  its  creditors  are  inviolable. 

Art.  32.  The  right  to  assemble  peaceably  and  without  arms 
is  recognized,  subject,  however,  to  the  laws  that  may  regulate 
its  exercise  in  the  interest  of  the  public  welfare.5 

This  provision  is  not  applicable  to  meetings  in  public  places 
or  places  open  to  the  public,  which  remain  entirely  subject  to 
police  laws. 

THE  SENATE 

Art.  33.  The  Senate  shall  be  composed  of  members,  appointed 
for  life  by  the  King  without  limit  of  numbers,  who  have  at- 

JLaw  of  May  17,  1906,  on  naturalization. 
JEdict  of  March  26,  1848,  amended  by  many  later  laws. 
*The  second  paragraph  of  this  Article  has  been  practically  abrogated. 
*Law  of  June  25,  1865. 

'Law  of  December  23, 1888,  on  public  security,  coordinated  with  the  new  Penal 
Code  by  the  Decree  of  June  30,  1889. 


ITALY  555 

tained  the  age  of  40  years  and  who  have  been  chosen  from  the 
following  categories  of  citizens : 

(1)  Archbishops  and  bishops  of  the  state. 

(2)  The  President  of  the  Chamber  of  Deputies. 

(3)  Deputies  after  having  served  in  three  legislatures,  or  after 
six  years  of  service. 

(4)  Ministers  of  state. 

(5)  Ministers  secretaries  of  state. 

(6)  Ambassadors. 

(7)  Envoys  extraordinary,  after  three  years  of  such  service. 

(8)  The  first  presidents  and  presidents  of  the  Courts  of  Cassa- 
tion and  of  the  Court  of  Accounts. 

(9)  The  first  presidents  of  the  courts  of  appeal. 

(10)  The  attorney  general  of  the  Courts  of  Cassation,  and  the 
prosecutor  general,  after  five  years  of  service. 

(11)  The  presidents  of  the  chambers  of  the  courts  of  appeal, 
after  three  years  of  service. 

(12)  The  councilors  of  the  Courts  of  Cassation  and  of  the 
Court  of  Accounts,  after  five  years  of  service. 

(13)  The  attorneys  general  and  fiscals  general  of  the  courts 
of  appeal,  after  five  years  of  service. 

(14)  General  officers  of  the  land  and  naval  forces. 

Major  generals  and  rear  admirals,  however,  should  have  five 
years  of  active  service  in  that  grade. 

(15)  The  councilors  of  state,  after  five  years  of  service. 

(16)  The  members  of  the  councils  of  division,1  after  three 
elections  to  their  presidency. 

(17)  The  intendants  general,2  after  seven  years  of  service. 

(18)  Members  of  the  Royal  Academy  of  Sciences,8  after  seven 
years  of  membership. 

(19)  Regular  members  of  the  Superior  Council  of  Public 
Instruction,  after  seven  years  of  service. 

(20)  Those  who  by  their  services  or  eminent  merit  have  done 
honor  to  their  country. 

(21)  Persons  who,  for  at  least  three  years,  have  paid  direct 
property  or  business  taxes  to  the  amount  of  3,000  lire. 

Art.  34.  The  princes  of  the  royal  family  are,  by  that  very 
fact,  members  of  the  Senate.  They  shall  take  rank  immedi- 
ately after  the  president.  They  shall  enter  the  Senate  at  the 
age  of  21  and  have  a  vote  at  25 .4 

JAt  the  time  of  the  adoption  of  this  Statute  the  "division"  in  Piedmont  cor- 
responded to  the  "province"  in  modern  Italy.  The  councils  of  division  are 
therefore  the  elective  representative  bodies  of  the  provinces,  now  known  as  the 
provincial  councils. 

*Now  called  "prefects." 

'This  provision  has  been  extended  to  six  other  academies. 

4In  1916  there  were  395  senators  and  6  members  of  the  royal  family. 


556  APPENDIX  III 

Art.  35.  The  President  and  Vice-Presidents  of  the  Senate 
shall  be  appointed  by  the  King.1 

The  Senate  shall  choose  its  own  secretaries  from  among  its  own 
members. 

Art.  36.  The  Senate  may  be  constituted  a  High  Court  of 
Justice  by  decree  of  the  King  to  try  crimes  of  high  treason  and 
attempts  upon  the  safety  of  the  state,  and  to  try  ministers  im- 
peached by  the  Chamber  of  Deputies.2 

In  this  case,  the  Senate  is  not  a  political  body.  It  shall  not 
then  occupy  itself  with  any  other  judicial  matters  than  those 
for  which  it  was  convened,  under  penalty  of  nullity. 

Art.  37.  No  Senator  shall  be  arrested  except  by  virtue  of  an 
order  of  the  Senate,  except  in  case  of  flagrante  delicto.  It  alone 
is  competent  to  judge  of  the  imputed  misdemeanors  of  its  mem- 
bers. 

Art.  38.  Legal  documents  as  to  births,  marriages,  and  deaths 
of  members  of  the  royal  family  shall  be  presented  to  the  Senate 
and  deposited  by  that  body  among  its  archives. 

THE  CHAMBER  OF  DEPUTIES 

Art.  39.  The  elective  house  shall  be  composed  of  Deputies 
chosen  by  the  electoral  colleges  in  conformity  with  the  law.3 

Art.  40.  No  Deputy  shall  be  admitted  to  the  Chamber  who  is 
not  a  subject  of  the  King,  30  years  of  age,  in  the  enjoyment  of 
civil  and  political  rights,  and  in  the  possession  of  the  other 
qualifications  required  by  law.4 

Art.  41.  Deputies  represent  the  nation  as  a  whole,  and  not 
the  several  provinces  in  which  they  were  elected. 

No  binding  instructions  shall  be  given  to  them  by  the  electors. 

Art.  42.  Deputies  are  elected  for  five  years;  their  mandate 
ceases  ipso  facto  at  the  expiration  of  this  period. 

Art.  43.  The  President,  Vice-Presidents,  and  secretaries  of  the 
Chamber  of  Deputies  are  chosen  by  the  Chamber  from  among 

1Law  of  June  6,  1889,  fixes  the  term  of  office. 

^Regulation  of  December  20,  1900,  on  the  procedure  before  the  Senate  con- 
stituted as  a  High  Court  of  Justice. 

*The  election  of  deputies  was  formerly  regulated  by  the  Decree  of  March  28, 
1895,  which  was  a  consolidation  of  all  laws  in  force  passed  before  that  date. 
This  electoral  law  received  slight  modifications  by  the  Laws  of  December  5, 1897, 
April  7,  1898,  and  May  19,  1901.  By  the  Law  of  June  30,  1912,  manhood 
suffrage  was  introduced,  increasing  the  electorate  from  three  and  one-half  millions 
to  more  than  eight  and  one-half  millions.  The  Law  of  August  15,  1919,  intro- 
duced proportional  representation.  For  a  discussion  of  this  law,  see  above,  pp. 
102-104. 

Parliamentary  incompatibilities  are  governed  by  the  Law  of  July  5,  1887. 


ITALY  557 

its  own  members  at  the  beginning  of  each  session,  for  the  entire 
session. 

Art.  44.  If  a  Deputy  ceases  for  any  reason  to  perform  his 
duties,  the  college  which  elected  him  shall  be  called  upon  at 
once  to  proceed  with  a  new  election. 

Art.  45.  During  the  sessions  no  Deputy  shall  be  arrested 
except  in  case  of  flagrante  delicto,  nor  be  proceeded  against  in 
criminal  matters  without  the  previous  consent  of  the  Chamber. 

Art.  46.  No  warrant  of  arrest  for  debts1  shall  be  executed 
against  a  Deputy  during  the  sessions  of  the  Chamber,  nor  within 
a  period  of  three  weeks  preceding  or  following  the  same. 

Art.  47.  The  Chamber  of  Deputies  has  the  right  to  impeach 
ministers  of  the  King  and  to  bring  them  to  trial  before  the  High 
Court  of  Justice. 

PROVISIONS  COMMON  TO  BOTH  HOUSES 

Art.  48.  The  sessions  of  the  Senate  and  of  the  Chamber  of 
Deputies  begin  and  end  at  the  same  time. 

Every  meeting  of  one  house  at  a  tune  when  the  other  is  not 
in  session  is  illegal  and  its  acts  are  entirely  void. 

Art.  49.  Senators  and  Deputies  before  being  admitted  to  the 
exercise  of  their  functions  take  the  oath  to  be  faithful  to  the  King, 
to  observe  faithfully  the  Statute  and  the  laws  of  the  State,  and  to 
perform  their  functions  with  the  inseparable  welfare  of  King 
and  country  as  the  sole  end  in  view.2 

Art.  50.  The  office  of  Senator  or  Deputy  shall  not  carry  with 
it  any  compensation  or  indemnity.3 

Art.  51.  Senators  and  Deputies  shall  not  be  called  to  account 
for  opinions  expressed  or  votes  given  in  the  houses. 

Art.  52.  The  sessions  of  the  houses  are  public. 

Nevertheless,  upon  the  written  request  of  10  members  secret 
sessions  may  be  held. 

Art.  53.  Sessions  and  deliberations  of  the  houses  are  not 
legal  or  valid  if  an  absolute  majority  of  their  members  is  not 
present. 

Art.  54.  Action  on  any  question  shall  be  taken  only  by  a 
majority  of  the  votes  cast. 

Art.  55.  All  bills  shall  first  be  submitted  for  preliminary 
examination  to  committees  elected  by  each  house.  Any  prop- 
osition discussed  and  approved  by  one  house  shall  be  trans- 

JThe  Mancini  Law  of  December  6, 1877,  has  done  away  with  personal  arrest  for 
debts. 

2Law  of  December  30,  1882,  on  the  political  oath. 

'Senators  and  deputies  receive  free  passage  on  the  railroads  (Decree  of 
December  26,  1861). 


558  APPENDIX  III 

mitted  to  the  other  for  its  consideration  and  approval;  and  then 
it  shall  be  presented  to  the  King  for  his  approval. 

Bills  shall  be  discussed  article  by  article. 

Art.  56.  Any  bill  rejected  by  one  of  the  three  legislative 
powers  shall  not  again  be  introduced  during  the  same  session. 

Art.  57.  Every  person  who  has  attained  his  majority  has  the 
right  to  send  petitions  to  the  houses,  which  shall  order  them  to 
be  examined  by  a  committee  and,  on  report  of  the  committee, 
shall  decide  whether  such  petitions  are  to  be  taken  into  con- 
sideration; in  case  of  an  affirmative  decision  they  shall  be  re- 
ferred to  the  competent  minister  or  deposited  in  the  offices1 
for  action  at  the  proper  time. 

Art.  58.  No  petition  may  be  presented  in  person  to  either 
house. 

Legally  organized  bodies  alone  shall  have  the  right  to  pe- 
tition under  a  collective  name. 

Art.  59.  The  houses  shall  not  receive  any  deputation,  nor  give 
hearing  to  others  than  their  own  members,  ministers,  and  com- 
missioners of  the  government. 

Art.  60.  Each  house  shall  be  the  sole  judge  of  the  qualifica- 
tions and  elections  of  its  own  members. 

Art.  61.  The  Senate  and  the  Chamber  of  Deputies  shall 
make  their  own  rules  and  regulations  respecting  their  methods 
of  procedure  in  the  performance  of  their  respective  duties.2 

Art.  62.  The  Italian  language  is  the  official  language  of  the 
houses.  The  use  of  French  shall,  however,  be  permitted  to  the 
members  coming  from  districts  where  French  is  used,  and  in 
replying  to  them.3 

Art.  63.  Votes  shall  be  taken  by  rising  and  sitting,  by  divi- 
sion, or  by  secret  ballot. 

The  latter  method,  however,  shall  always  be  employed  for  the 
final  vote  on  a  law  and  in  all  cases  of  a  personal  character. 

Art.  64.  No  one  shall  at  the  same  time  be  Senator  and  Deputy. 

THE  MINISTERS 

Art.  65.  The  King  appoints  and  dismisses  his  ministers.4 
Art.  66.  The  ministers  have  no  vote  in  either  house  unless 
they  are  members  thereof. 

1The  Chamber  of  Deputies  is  divided  into  9  sections  (uffizi),  among  which  leg- 
islative business  is  divided  by  the  President  of  the  Chamber. 

'The  Internal  Regulations  of  the  Senate  bear  the  date  of  April  17,  1883 
(amended  in  1900  and  1902);  those  of  the  Chamber  of  Deputies  are  of  July  1, 
1900  (amended  in  1901  and  1904). 

3This  clause  applied  principally  to  Savoy  and  Nice,  which  became  a  part  of 
France  by  the  terms  of  the  Treaty  of  March  24,  1860. 

4Decree  of  August  25,  1876,  on  the  attributions  of  the  Council  of  Ministers. 
Law  of  February  12,  1888,  reorganizing  the  central  administration  of  the  state 


ITALY  559 

They  shall  have  entrance  to  both  houses  and  shall  be  heard 
upon  request. 

Art.  67.  The  ministers  are  responsible. 

Laws  and  governmental  acts  shall  not  take  effect  until  they 
shall  have  received  the  signature  of  a  minister. 

THE  JUDICIARY 

Art.  68.  Justice  emanates  from  the  King  and  shall  be  ad- 
ministered in  his  name  by  the  judges  whom  he  appoints. 

Art.  69.  Judges  appointed  by  the  King,  except  cantonal 
judges,  shall  be  irremovable  after  three  years  of  service.1 

Art.  70.  Courts,  tribunals,  and  judges  shall  be  retained  as  at 
present  existing.  No  modification  shall  be  introduced  except 
by  law.2 

Art.  71.  No  one  shall  be  withdrawn  from  his  ordinary 
legal  jurisdiction. 

It  shall,  therefore,  not  be  lawful  to  create  extraordinary 
tribunals  oj  commissions.3 

Art.  72.  The  proceedings  of  courts  in  civil  cases  and  the 
hearings  in  crimina.1  cases  shall  be  public,  as  provided  by  law. 

Art.  73.  The  interpretation  of  the  laws,  in  the  form  obligatory 
upon  all  citizens,  belongs  exclusively  to  the  legislative  power. 

GENERAL  PROVISIONS 

Art.  74.  Communal  and  provincial  institutions  and  the 
boundaries  of  the  communes  and  provinces  shall  be  regulated 
by  law.4 


and  providing  under-secretaries  of  state  for  each  ministry.  Law  of  May  3,  1888, 
on  the  reelection  of  ministers  and  under-secretaries  of  state.  Law  of  April  8, 
1906,  determining  the  composition  of  the  staffs  of  the  President  of  the  Council, 
of  the  ministers,  and  of  the  under-secretaries  of  state. 

JTwo  decrees,  dated  October  10,  1907,  instituted  a  Superior  Council  on  the 
Magistracy  and  fixed  the  method  of  promotion  of  judicial  personnel.  Law  of 
July  14,  1907,  on  the  guarantees  and  discipline  of  the  magistracy. 

'The  Law  on  the  Organization  of  the  Judiciary  dates  from  December  6, 18S5 
(amended  by  the  Laws  of  July  18,  1904,  and  July  14,  1907).  Organic  Law  of 
June  8, 1874,  on  the  jury  and  the  Court  of  Assizes.  Organic  Law  of  August  14. 
1862,  on  the  Court  of  Accounts. 

3The  Code  of  Penal  Procedure,  however,  in  Article  766  provides  that,  in  case 
of  reasonable  suspicion,  or  on  the  grounds  of  public  safety,  a  person  may  be  re- 
moved for  trial  from  the  regularly  constituted  jurisdiction. 

4A11  of  the  laws  relating  to  provincial  and  communal  organizations  were  codi- 
fied first  by  the  Decree  of  February  10, 1889,  secondly  by  the  Decree  of  May  4, 
1898,  and  thirdly  by  the  Decree  of  May  21, 1908.  The  Kingdom  is  divided  into 
provinces,  circondari,  mandamenti,  and  communes,  and  the  system  of  provincial 
and  communal  government  is  to  a  large  extent  copied  from  Prance. 


560  APPENDIX  III 

Art.  75.  Military  conscriptions  shall  be  regulated  by 
law.1 

Art.  76.  A  communal  militia  shall  be  established  upon  a 
basis  fixed  by  law.2 

Art.  77.  The  state  retains  its  flag,  and  the  blue  cockade  is 
the  only  national  one.3 

Art.  78.  The  knightly  orders  now  in  existence  shall  be  main- 
tained with  their  endowments,  which  shall  not  be  used  for  other 
purposes  than  those  specified  in  the  acts  by  which  they  were 
established. 

The  King  may  create  other  orders  and  prescribe  their  con- 
stitutions. 

Art.  79.  Titles  of  nobility  shall  be  borne  by  those  who  have 
a  right  to  them.  The  King  may  confer  new  titles. 

Art.  80.  No  one  may  receive  decorations,  titles,  or  pen- 
sions from  a  foreign  power  without  the  authorization  of  the 
King. 

Art.  81.  All  laws  contrary  to  the  present  Statute  are  abro- 
gated. 

TRANSITIONAL  PROVISIONS 

Art.  82.  This  Statute  shall  go  into  effect  on  the  day  of  the 
first  meeting  of  the  two  houses,  which  shall  take  place  immedi- 
ately after  the  elections.  Until  that  time  urgent  public  ser- 
vice shall  be  provided  for  by  royal  ordinances  according  to  the 
mode  and  form  now  in  vogue,  excepting,  however,  the  authenti- 
cations and  registrations  in  the  courts  which  are  from  now  on 
abolished. 

Art.  83.  In  the  execution  of  this  Statute  the  King  reserves 
to  himself  the  right  to  make  the  laws  for  the  press,  elections, 
communal  militia,  and  the  reorganization  of  the  Council  of 
State. 

Until  the  publication  of  the  laws  for  the  press,  the  regulations 
now  in  force  on  this  subject  shall  remain  valid. 

Art.  84.  The  ministers  are  entrusted  with  and  are  responsible 
for  the  execution  and  full  observance  of  these  transitional  pro- 
visions. 


irThe  laws  on  the  organization  of  the  army  were  codified  by  the  Decree  of  July 
14,  1898  (amended  by  the  Laws  of  July  7,  1901.  and  December  24,  1908).  By 
Decrees  of  November,  1919  (No.  2,143)  and  April  20,  1920  (No.  451)  the  army 
was  fundamentally  reorganized. 

*The  National  Guard  has  been  suppressed. 

3The  Italian  tricolor  of  green,  white,  and  red  was  adopted  by  the  Proclamation 
of  March  23, 1848 — an  act  regarded  as  legal,  because  the  Statute  was  not  in  force 
according  to  the  terms  of  Article  82. 


ITALY  561 

3.  LAW  OF  GUARANTEES  OF  MAY  13,  18711 

LAW  ON  THE  PREROGATIVES  OF  THE  SUPREME  PONTIFF  AND  OF 

THE  HOLY  SEE  AND  ON  THE  RELATIONS  OF  THE  STATE 

WITH  THE  CHURCH 

TITLE  I.  PREROGATIVES  OF  THE  SUPREME  PONTIFF 
AND  OF  THE  HOLY  SEE 

Article  1.  The  person  of  the  Supreme  Pontiff  is  sacred  and 
inviolable. 

Art.  2.  Any  attempt  against  the  person  of  the  Supreme  Pon- 
tiff and  the  provocation  to  commit  such  an  attempt  shall  be 
punished  with  the  same  penalty  as  similar  offenses  against  the 
person  of  the  King. 

Public  offenses  and  insults  committed  directly  against  the 
person  of  the  Supreme  Pontiff,  by  speech,  by  act  or  by  the  means 
indicated  in  Article  1  of  the  Law  on  the  Press  shall  be  punished 
with  the  penalty  fixed  by  Article  19  of  the  said  law. 

The  crimes  above  mentioned  shall  be  proceeded  against  by 
the  public  prosecutor  and  tried  by  the  Courts  of  Assizes. 

The.  discussion  of  religious  matters  shall  be  entirely  free. 

Art.  3.  The  Italian  government  grants  to  the  Supreme 
Pontiff,  within  the  Kingdom,  sovereign  honors,  and  guarantees 
lo  him  the  preeminence  customarily  accorded  to  him  by  Catho- 
lic sovereigns. 

The  Supreme  Pontiff  may  maintain  the  usual  number  of 
guards  for  his  person  and  for  the  custody  of  the  palaces,  with- 
out prejudice  to  the  obligations  and  duties  of  such  guards,  ac- 
cording to  the  laws  in  force  in  the  Kingdom. 

Art.  4.  The  dotation  of  an  annual  income  of  3,225,000  lire  is 
reserved  for  the  Holy  See. 

With  this  sum,  equal  to  that  of  the  Roman  budget  for  "  holy 
apostolic  palaces,  sacred  college,  ecclesiastical  congregations, 
secretary  of  state,  and  diplomatic  corps  abroad,"  it  is  intended 
to  provide  for  the  Supreme  Pontiff  and  for  the  various  ec- 
clesiastical needs  of  the  Holy  See,  for  the  ordinary  and  extra- 
ordinary maintenance  and  custody  of  the  apostolic  palaces  and 
their  annexes,  for  the  compensation  and  pensions  of  the  guards 
mentioned  in  the  preceding  article  and  of  the  attaches  of  the 
pontifical  court,  and  for  casual  expenses;  as  well  as  for  the  reg- 
ular maintenance  and  custody  of  the  museums  and  library  at- 
tached to  the  apostolic  palaces,  and  for  the  compensation  and 
pensions  of  their  employees. 

English  translation  in  Wright,  op.  cit.,  pp.  347-350,  in  Dodd,  op.  cii.,  pp.  16- 
21,  and  in  the  British  and  Foreign  State  Papers,  65:  pp.  638-642.  French  transla- 
tion in  Dareste,  op.  cit.,  pp.  685-690. 


562  APPENDIX  III 

This  dotation  shall  be  entered  in  the  great  book  of  the  public 
debt  as  a  perpetual  and  inalienable  income  in  the  name  of  the 
Holy  See,  and  during  the  vacancy  of  the  See,  it  shall  continue 
to  be  paid  to  supply  all  the  needs  of  the  Roman  Church  during 
such  interval. 

It  shall  remain  exempt  from  even,'  form  of  state,  provincial, 
or  communal  taxation  or  other  burden,  and  shall  not  be  di- 
minished even  in  case  the  Italian  Government  should  later  de- 
cide to  assume  the  expenses  of  the  museums  and  of  the  library. 

Art.  5.  Besides  the  dotation  mentioned  in  the  preceding 
article  the  Supreme  Pontiff  shall  have  the  use  of  the  apostolic 
Vatican  and  Lateran  palaces  with  all  buildings,  gardens,  and 
lands  appertaining  thereto,  and  also  the  villa  of  Castel  Gandolfo 
with  all  its  appurtenances. 

These  palaces,  the  villa,  and  its  annexes,  as  well  as  the  mu- 
seums, the  library,  and  the  collections  of  art  and  of  archaeology 
connected  therewith,  are  inalienable  and  are  exempt  from  all 
taxation  or  charges  and  from  seizure  for  a  public  purpose. 

Art.  6.  During  the  vacancy  of  the  pontifical  chair  no  judicial 
or  political  authority  shall  for  any  reason  hinder  or  limit  the 
personal  liberty  of  cardinals. 

The  government  shall  see  to  it  that  assemblies  of  conclave 
and  of  ecumenical  councils  are  not  disturbed  by  external  vio- 
lence. 

Art.  7.  No  public  official  or  agent  of  the  public  force  in  the 
performance  of  the  duties  of  his  office  shall  enter  the  places  or 
palaces  which  are  the  permanent  or  temporary  residence  of 
the  Supreme  Pontiff,  or  hi  which  a  conclave  or  ecumenical 
council  is  in  session,  without  the  authorization  of  the  Pope, 
conclave,  or  council. 

Art.  8.  Papers,  documents,  books,  or  registers  deposited  in 
pontifical  offices  or  congregations,  invested  with  a  purely  spir- 
itual character,  shall  be  free  from  the  legal  processes  of  visit, 
search,  or  sequestration. 

Art.  9.  The  Supreme  Pontiff  shall  be  entirely  free  to  fulfill 
all  the  functions  of  his  spiritual  ministry,  and  to  this  end  may 
affix  to  the  doors  of  basilicas  and  churches  of  Rome  notices  re- 
lating to  such  ministry. 

Art.  10.  Ecclesiastics  at  Rome  who  officially  take  part  in  the 
promulgation  of  acts  pertaining  to  the  spiritual  ministry  of 
the  Holy  See  shall  not  on  this  account  be  subjected  to  any  ex- 
amination, investigation,  or  control  by  the  civil  authorities. 

Every  foreigner  invested  with  ecclesiastical  office  at  Rome 
shall  enjoy  all  the  personal  guarantees  competent  to  Italian 
citizens,  in  accordance  with  the  laws  of  the  Kingdom. 

Art.   11.  Envoys  of  foreign  governments  to  the  Holy  See 


ITALY  563 

shall  be  entitled  within  the  Kingdom  to  all  the  prerogatives 
and  immunities  accorded  to  other  diplomatic  agents,  accord- 
ing to  the  usages  of  international  law. 

All  offenses  against  them  shall  be  subject  to  the  same  pen- 
alties as  are  provided  for  offenses  against  envoys  of  foreign 
powers  to  the  Italian  Government. 

Envoys  of  the  Holy  See  to  foreign  governments  shall,  within 
the  territory  of  the  Kingdom,  be  entitled  to  privileges  and  im- 
munities of  the  same  character  while  going  to  or  returning  from 
their  mission. 

Art.  12.  The  Supreme  Pontiff  corresponds  freely  with  the 
episcopacy  and  with  the  whole  Catholic  world,  without  any 
interference  from  the  Italian  Government. 

To  this  end  he  shall  have  the  right  to  establish  his  own 
postal  and  telegraph  offices  at  the  Vatican  or  at  any  of  his  other 
residences,  served  by  employees  chosen  by  himself. 

The  pontifical  post  office  may  transmit  sealed  packages  of 
correspondence  directly  to  foreign  offices,  or  may  send  them 
through  the  Italian  offices.  In  either  case,  transmission  of  dis- 
patches or  correspondence  bearing  the  papal  stamp  shall  be  ex- 
empt from  all  taxation  or  charges  within  Italian  territory. 

Couriers  sent  out  in  the  name  of  the  Supreme  Pontiff  are, 
within  the  Kingdom,  placed  on  an  equal  footing  with  couriers 
of  foreign  governments. 

The  pontifical  telegraph  office  shall  be  connected  with  the 
telegraphic  system  of  the  state  at  the  expense  of  the  state. 

Telegrams  sent  by  the  pontifical  office  with  pontifical  authen- 
tication shall  be  received  and  transmitted  within  the  Kingdom 
in  the  same  manner  as  telegrams  of  state  and  without  charge. 

Telegrams  of  the  Supreme  Pontiff  or  sent  by  his  order,  which 
bear  the  papal  stamp,  shall  enjoy  the  same  privileges  if  pre- 
sented to  any  telegraph  office  of  the  Kingdom. 

Telegrams  addressed  to  the  Supreme  Pontiff  shall  be  ex- 
empt from  the  tax  imposed  upon  those  who  receive  telegrams. 

Art.  13.  Within  the  city  of  Rome  and  within  the  six  sub- 
urbicarian  sees,  the  seminaries,  academies,  colleges,  and  other 
Catholic  institutions  founded  for  the  education  and  training 
of  ecclesiastics  shall  continue  under  the  sole  control  of  the  Holy 
See,  without  any  interference  from  the  educational  authorities 
of  the  Kingdom. 

TITLE  II.    RELATIONS  OF  THE  STATE  WITH  THE  CHURCH 

Art.  14.  Every  special  restriction  upon  the  exercise  of  the 
right  of  members  of  the  Catholic  clergy  to  assemble  is  abol- 
ished. 

Art.  15.  The  government  renounces  the  right  to  an  apostolic 


564  APPENDIX  III 

legation  in  Sicily,  and  to  appointment  or  nomination  in  the 
presentation  of  the  major  benefices  throughout  the  Kingdom. 

Bishops  shall  not  be  required  to  swear  fidelity  to  the  King. 

Major  and  minor  benefices  may  be  conferred  only  upon 
Italian  citizens,  except  in  the  city  of  Rome  and  in  the  sub- 
urbicarian  sees. 

Nothing  is  changed  with  respect  to  the  presentation  of  bene- 
fices of  royal  patronage. 

Art.  16.  The  exequatur  and  royal  placet  and  all  other  forms  of 
government  authorization  for  the  publication  or  execution  of 
ecclesiastical  acts  are  abolished. 

But,  until  otherwise  provided  by  a  special  law  mentioned  in 
Article  18,  such  exequatur  and  royal  placet  shall  be  required  for 
acts  disposing  of  ecclesiastical  property  and  for  appointments  to 
major  and  minor  benefices,  except  those  in  the  city  of  Rome, 
and  in  the  suburbicarian  sees.1 

The  provisions  of  the  civil  laws  relating  to  the  creation  and 
management  of  ecclesiastical  institutions,  and  to  the  sale  of 
their  property,  remain  unchanged. 

Art.  17.  In  spiritual  and  disciplinary  matters  there  shall  be  no 
claim  or  appeal  against  decisions  of  ecclesiastical  authorities, 
nor  shall  such  decisions  be  recognized  or  executed  by  the  civil 
authorities. 

The  determination  of  the  legal  effects  of  such  decisions  and 
of  other  acts  of  the  ecclesiastical  authority  shall  belong  to  the 
civil  authorities. 

If,  however,  such  acts  are  contrary  to  the  laws  of  the  state 
or  opposed  to  public  order,  or  encroach  upon  the  rights  of  in- 
dividuals, they  shall  be  of  no  effect,  and,  if  they  constitute 
offenses,  shall  be  subject  to  the  criminal  laws. 

Art.  18.  A  future  law  shall  provide  for  the  reorganization, 
preservation,  and  administration  of  the  ecclesiastical  property 
within  the  Kingdom.2 

Art.  19.  In  all  the  matters  which  form  the  object  of  the 
present  law,  regulations  now  in  force  contrary  to  this  law  are 
repealed. 

'Decree  of  June  25, 1871,  containing  provisions  for  the  exequatur  and  the  royal 
placet. 

2See  the  Law  of  June  19,  1873,  on  the  suppression  of  religious  corporations  in 
Rome,  etc. 


APPENDIX  IV 

THE  RECOGNITION  OF  NEW  STATES 
SINCE 


1.    NOTE  ON  RECOGNITION  OF  CERTAIN  STATES  (POLAND, 
SERB-CROAT-SLOVENE  STATE,  CZECHOSLOVAKIA) 

1.  Recognizing  Authorities.    The  doctrine  of  recognition  of 
states  has  always  been  somewhat  disputed,  but  it  has  usually 
been  admitted  that  recognition  of  a  new  state  by  an  important 
state  is  bound  ultimately  to  involve  recognition  by  the  general 
family  of  nations.     But,  at  present,  both  the  Supreme  Coun- 
cil and  the  League  of  Nations  possess  great  authority   for 
the  purpose  of  recognizing  states,  and  yet  sometimes  conflict 
with  one  another  in  their  use  of  it.    E.  g.,  Esthonia  and  Latvia 
were  refused  admission  to  the  League  by  the  Assembly  on  the 
17th  December,  1920,  but  received  recognition  de  jure  from  the 
Supreme  Council  on  the  26th  January,  1921.    Albania  was  ad- 
mitted to  the  League  on  the  17th  December,  1920,  but  so  far 
(end  March,  1921)  she  has  not  been  recognized  de  jure  by  the 
Supreme  Council  or  by  any  important  state. 

No  attempt  can  be  made  here  to  solve  these  difficulties,  but 
a  short  description  will  be  given  of  the  circumstances  attending 
the  recognition  of  Poland,  the  Serb-Croat-Slovene  State,  and 
Czechoslovakia,  which  raise  some  new  and  important  points. 

2.  Three  Conditions  Necessary  to  the  Existence  of  a  State.    Ac- 
cording to  doctrines  generally  accepted  in  international  law 
"statehood   itself  is   independent  of  recognition."3    The  ex- 
istence of  the  state  itself  is  a  question  of  fact,  but  recognition 
is  necessary  to  admit  a  state  into  the  common  family  of  nations, 
for  international  law  cannot  take  notice  of  an  unrecognized 
state.    The  conditions  necessary  for  the  existence  of  a  state 
have  been  much  disputed,  but  on  three  there  is  universal  agree- 

iFrom  Temperley,  Ed.,  A  History  of  the  Peace  Conference  of  Paris,  Vol.  V, 
pp.  157  ff.  (London,  1921).  The  note  and  the  list  here  quoted  were  written  by 
Mr.  Temperley  himself. 

2See  Oppenheim,  International  Law,  1905,  Vol.  I,  p.  110;  see  also  Hall,  Inter- 
national Law  (7th  edition),  1917,  pp.  85-88;  T.  J.  Lawrence,  Principles  of  Inter- 
national Law  (1898),  pp.  84-90;  and  A.  S.  Hershey,  Article  in  American  Journal  of 
International  Law,  October,  1920,  who  gives  full  reference  to  American  authori- 
ties. 

565 


566  APPENDIX  IV 

ment  among  international  lawyers.  A  state  must  have  (a)  a 
definite  territory,  (b)  a  population  inhabiting  this  territory, 
and  (c)  a  sovereignty  exercised  on  this  territory,  both  intern- 
ally in  the  sense  of  being  imposed  on  the  inhabitants  of  the 
territory  by  legal  measures,  and  externally  in  that  it  is  not 
interfered  with  and  rendered  impossible  in  fact,  or  irregular 
in  law,  by  the  sovereignty  of  another  state. 

During  the  late  war  certain  utterances  were  made  by  the 
Allied  (or  Enemy)  Powers  with  a  view  to  creating  or  assisting 
the  formation  of  a  state  by  propaganda,  and  these  utterances 
have  been,  inaccurately,  termed  recognition.  In  fact,  recog- 
nition only  becomes  operative  when  the  above-named  three 
conditions  are  fulfilled. 

3.  Poland.    A  case  might  be  made  out  to  show  that  Poland 
had  received  recognition  before  the  war  had  ended,  because 
public  utterances  were  made  before  the  end  of  the  war  by  the 
Powers,  whether  Central  or  Allied,  of  her  right  to  independence.1 
It  would  appear,  however,  that  her  internal  conditions  were 
unstable.     On  the  5th  November,  1916,  the  independence  of 
Russian  Poland  had  been  declared  by  Germany  and  Austria- 
Hungary.     But    the    Polish    Regency    Council,    which    ruled 
Russian  Poland,  was  certainly  under  German  or  Austro-Hun- 
garian  control  until  the  llth  November,  1918,  and,  after  that 
date,  a  period  of  something  like  anarchy  ensued,  which  was 
certainly  not  ended  until  the  30th  December,  1918.     Conse- 
quently, Poland  did  not,  in  fact,  fulfill  the  conditions  of  a  state 
until  that  date,  or  perhaps  until  some  days  later.     It  might 
reasonably  be  held  that  the  formal  admission  of  Poland's  pleni- 
potentiaries to  the  Peace  Conference  (18th  January,  1919)2  was 
the  earliest  date  at  which  such  recognition  really  came  into 
force.     Some  authorities  even  place  that  date  as  late  as  the 
signature  of  the  German  treaty  (28th  June,  1919).     The  Polish 
boundaries  are  not  even  yet  [1921]  everywhere  defined. 

4.  Serb-Croat-Slovene  State.     This   case  presents    more   dif- 
ficulty because  Serbia  was  already  a  sovereign  independent 
state,  and  the  question  arises  as  to  when  the  new  state,  re- 
modelled and  including  the  three  races,  came  into  existence. 
It  could  hardly  be  said  that  a  substantial  part  of  both  Croat 
and  Slovene  territory  was  under  the  control  of  the  Serb-Croat- 
Slovene  Government  until  the  petitions   and  representatives 
of  these  areas  reached  Belgrade,  and  the  Regent  signified  his 

JSee  references  and  quotations,  Temperley,  Ed.,  op.  cit.,  Vol.  I,  pp.  181,  183- 
84,  199. 

"Most  international  lawyers  would  think  this  enough,  for  the  form  of  recogni- 
tion does  not  matter.  "Any  act  is  sufficient  which  indicates  intention,"  see 
T.  J.  Lawrence,  International  Law,  p.  98  (1898). 


RECOGNITION  OF  STATES  567 

assent  to  union  by  decree  (1st  December,  1918),  confirmed  by 
Act  of  Serbian  Skupshtina  in  conjunction  with  a  national 
representative  convention  (16th  December,  1918),  and  until  a 
combined  national  and  representative  ministry  was  appointed.1 
Much  of  the  Slovene  and  Croat  territory  was,  by  that  time, 
liberated.  The  Great  Powers,  however,  refused  to  admit 
Serb-Croat-Slovene  plenipotentiaries  to  the  Peace  Conference 
(18th  January,  1919;,  recognizing  them  as  purely  Serbian  rep- 
resentatives. The  United  States  recognized  the  Serb-Croat- 
Slovene  State  on  the  5th  February.  On  the  1st  May  credentiala 
for  the  German  treaty  were  verified,  and  these  were  accepted 
in  the  name  of  the  Serb-Croat-Slovene  State,  not  of  Serbia. 
This  was  done  in  the  absence  of  Italy,  but  on  the  2nd  and  6th 
June  respectively  Great  Britain  and  France  publicly  recog- 
nized the  new  state,  and  the  recognition  of  Italy  and  all  other 
signatory  Powers  of  the  treaty  with  Germany  must  date  from 
the  signature  of  that  treaty  (28th  June,  1919),  which  mentions 
the  Serb-Croat-Slovene  State  by  name  hi  the  Preamble  and  in 
certain  articles  thereof.  In  practice,  however,  recognition 
would  appear  to  have  been  really  accorded  on  the  1st  May. 

In  this  case,  owing  to  the  opposition  of  Italy,  the  recognition 
of  a  new  state  was  deferred  beyond  the  time  at  which  it  had,  in 
fact,  fulfilled  the  three  necessary  conditions  required.  The 
time  at  which  these  were  fulfilled  was  evidently  on  the  1st  or 
16th  December,  1918. 

5.  Czechoslovakia.  This  case  presents  almost  as  great  a  dif- 
ficulty as  that  of  Poland.  For  though  at  different  times 
various  Powers  recognized  the  existence  of  a  Czechoslovak  army, 
of  a  provisional  government,  and  even  of  a  nation,  and  rec- 
ognized them  also  as  belligerents,  these  actions  do  not  neces- 
sarily involve,  at  least  in  international  law,  the  recognition  of 
the  Czechoslovak  State.  That  depended  on  the  legal  situa- 
tion in  1914  and  on  its  alteration  by  events  up  to  and  during 
1918.  It  is  quite  impossible  to  contend  that  the  Kingdom  of 
Bohemia,  the  Markgraviate  of  Moravia,  etc.,  were  separate 
states  in  1914,  though  the  Austrian  and  Czechoslovak  govern- 
ments have  both  made  such  contentions.  Even  less  is  it  pos- 
sible to  contend  thus  with  regard  to  the  Slovak  area  of  Hungary. 
These  different  regions  were  not  under  a  single  administrative 
head  and  possessed  no  proper  and  single  sovereignty.  It  is 
true  that  there  was  mutiny  among  Czech  regiments  and  in- 
surrection among  Czech  subjects,  but  neither  movement 
achieved  the  liberation  of  Czech,  and  still  less  of  Slovak,  ter- 
ritory at  any  time  previous  to  the  end  of  October,  1918.  On 

'  Tor  the  special  case  of  Montenegro,  see  Temperley,  Ed.,  op.  ctt.,  Vol.  IV,  pp. 
201-04. 


568  APPENDIX  IV 

the  9th  October  Zahradnik,  a  Czech  Deputy,  announced  that 
the  Czech  members  had  definitely  left  the  Parliament  of  Vienna. 
This  utterance  shows  that,  up  till  then,  they  were  not  inde- 
pendent but  a  part  of  that  Parliament.  Outside  Czechoslo- 
vakia in  Paris  a  Czechoslovak  National  Council  was  formed, 
consisting  of  distinguished  Czechoslovak  exiles,  and  ultimately 
Czechoslovak  volunteers  were  formed  into  three  armies  in 
France,  Italy,  and  Siberia.  Recognition  by  the  Allied  Powers 
of  the  control  of  the  Czechoslovak  National  Council  over  its 
army,  or  declarations  of  sympathy  with  Czechoslovak  national 
aspirations,  did  little  more  than  indicate  that  a  Czechoslovak 
state  might  arise  in  the  future,  though  they  helped  to  create 
conditions  favorable  to  that  end. 

The  utterances  of  the  Allied  Powers  would,  themselves,  show 
this.  M.  Pichon,  on  behalf  of  the  French  Republic,  in  a  letter 
of  the  29th  June,  1918,  recognized  "publicly  and  officially  the 
(Czechoslovak)  National  Council  as  the  governing  organism 
of  the  general  interests  and  as  the  just  basis  of  the  future  Czecho- 
slovak Government.  Mr.  Balfour,  on  the  9th  August,  1918, 
wrote:  "Great  Britain  regards  the  Czechoslovaks  as  an  allied 
nation  .  .  .  recognizes  the  unity  of  the  three  Czecho- 
slovak armies  as  an  allied  and  belligerent  army  .  .  .  rec- 
ognizes the  rights  of  the  Czechoslovak  National  Council,  as 
the  supreme  organ  of  the  Czechoslovak  national  interests,  and 
as  the  present  trustee  of  the  future  Czechoslovak  Government."1 
On  the  2nd  September,  1918  (published  3rd),  President  Wilson 
went  further:  "the  Czechoslovaks  having  in  the  prosecution  of 
their  struggle  for  independence  in  the  present  war  confided  the 
supreme  political  authority  to  the  Czechoslovak  National 
Council,  the  Government  of  the  United  States  recognizes  thai, 
a  state  of  belligerency  exists  between  the  Czechoslovaks  thus  or- 
ganized and  the  German  and  Austro-Hungarian  Empires." 

It  has  been  claimed  for  all  these  utterances,  and  more  parti- 
cularly for  the  last,  that  they  constituted  a  recognition  of  an 
independent  Czechoslovak  state.  It  is,  however,  obvious  from 
the  italicized  passages  that  they  did  nothing  of  the  sort,  and 
that  they  all  struck  a  futurist  note,  recognizing  only  the  efforts 
of  armies,  and  the  existence  of  an  embryonic  government  striv- 
ing to  achieve  independence.  For  it  was  true  even  on  the  3rd 
September,  1918,  that  the  independence  of  Czechoslovakia  de- 
pended on  the  victory  of  the  Allies. 

On  the  15th  October,  1918,  M.  Pichon  struck  a  new  and  im- 
portant note  at  the  moment  at  which  the  Czechoslovak  Na- 
tional Council  of  Paris  issued  its  decree  of  independence.  He 
published  a  statement  that  he  "unreservedly  recognizes  ... 

'Published  llth  August,  1918. 


RECOGNITION  OF  STATES  569 

the  new  government  and  adds  an  expression  of  his  profound 
satisfaction."  A  similar  utterance  was  made  by  Baron  Sonnino 
on  the  24th  October,  1918.  These  utterances  are  definite,  and 
the  verbal  recognition  is  practically  complete,  but  the  condition 
of  statehood  and  of  national  independence  remained  to  be 
achieved.  There  had  not  been  a  de  facto  liberation  of  the  terri- 
tory and  population  of  the  Czechoslovak  State.1 

It  does  not  appear  that  this  liberation  had  already  taken 
place.  On  the  1st  November  all  Hungarian  troops  were  ordered 
to  lay  down  their  arms;  on  the  3rd  November  Austria-Hungary 
signed  an  armistice  with  the  Powers.  It  was  not  till  the  5th 
November,  1918,  that  the  Czech  deputies  from  the  National 
Council  of  Paris  arrived  at  Prague,  or  that  the  first  session  of 
the  National  Committee  took  place,  which  was  in  fact  the  first 
appearance  of  a  provisional  government  and  assembly  sitting 
in  the  capital  of  the  areas  liberated  and  in  direct  connection  with 
the  National  Council  of  Paris.  It  would  appear  therefore  that 
this  liberation  of  territory  could  not  have  taken  effect  until  the 
28th  of  October,  and  perhaps  not  until  the  5th  November. 

As  regards  recognition  therefore  it  seems  safe  to  contend  that 
the  utterances  of  the  Powers,  previous  to  the  28th  of  October  or 
the  5th  November,  were  in  truth  anticipations  of  the  fact  of 
statehood  and  not  a  recognition  of  a  fait  accompli.  It  cannot  be 
contended  that  any  of  these  utterances  coincided  with  the  ac- 
tual fact  of  liberation.  It  might,  however,  be  held  that  some  of 
them  (particularly  the  utterances  of  Mr.  Balfour  (9th  August), 
President  Wilson  (3rd  September),  M.  Pichon  (15th  October), 
and  Baron  Sonnino  (24th  October)  came  into  force  as  a  recogni- 
tion of  the  Czechoslovak  State  at  the  moment  that  the  actual 
liberation  was  accomplished  (28th  of  October  or  5th  November). 
If  that  hypothesis  be  not  adopted,  full,  final,  and  complete  rec- 
ognition was  accorded  on  the  18th  January,  1919,  by  admission 
of  Czechoslovak  plenipotentiaries  to  the  Plenary  Session  of  the 
Peace  Conference.3 


»In  response  to  a  note  of  M.  BeneS,  Secretary  of  the  Czechoslovak  National 
Council,  M.  Pichon  quotes  three  incidents  subsequent  to  President  Wilson's 
utterance  of  the  3rd  September,  1918:  (i)  constitution  of  a  National  Council  in 
agreement  with  chiefs  left  behind  in  Czechoslovakia,  i.  e.,  of  a  provisional  govern- 
ment; (ii)  announcement  of  Deputy  Stan5k  in  Parliament  of  Vienna  that 
the  Czech  Parliamentary  Club  had  summoned  the  National  Council  at  Paris  to 
represent  the  Czechoslovak  nation  at  the  Peace  Conference;  (iii)  utterance  of 
Zahradnik  (9th  October,  1918)  above  quoted.  These  three  incidents  show  that, 
in  fact,  M.  Benes  conceived  the  situation  as  altered  in  favor  of  the  independence 
of  Czechoslovakia  by  events  subsequent  to  the  3rd  September,  1918. 

*On  15th  April,  1921,  the  Reparation  Commission  stated  the  date  of  Czecho- 
slovakia':; belligerency  (and  consequently  their  opinion  of  the  date  of  her  inde- 
pendence) as  28th  October,  1918  (cf.  Temperley,  Ed.,  op.  tit..  VoL  IV,  p.  113, 
for  events  in  Prague  on  that  day). 


570  APPENDIX  IV 


2.    LIST  OF  RECOGNITION   OF   NEW  STATES,  ADMISSION  TO 
LEAGUE,  TERRITORIAL  CHANGES,  ETC.      RECOGNIZED 
TO  END  OF  MARCH,  192 11 

Abbreviations  used:  U.  S.  A.  (United  States);  G.  B.  (Great 
Britain);  Fr.  (France);  It.  (Italy);  S.  C.  (Supreme  Council); 
L.  of  N.  (League  of  Nations).;  [P.  A.  and  A.  Powers  (Principal 
Allied  and  Associated  Powers);  S.  C.  S.  State  (Serbo-Croat- 
Slovene  State)]. 

DATES 

Albania Resolution  Ambassadors'  Con- 
ference 29  July  1913  (inde- 
pendence); admitted  L.  of 
N.  17  Dec.  '20. 

Austria  (new  Govt.  and  terri-    Austrian  Treaty  10  Sept.  '19, 
torial  changes)     .      .      .     *  ••       admitted  L.  of  N.  16  Dec. 

'20. 

Belgium  (new  status)  .      .      .     German  Treaty  28  June  '19. 

Bessarabia  (transferred  to  Ru-     Bessarabian    Treaty    28    Oct. 
mania) '20  (U.S.A.  not  a  Party). 

Bulgaria  (new  Govt.  and  terrl.      Bulgarian  Treaty  27  Nov.  '19; 
changes)    .      ....     .      .         admitted  L.  of  N.  16  Dec. 

'20. 

Costa    Rica    (not    admitted 

Conf.) Admitted  L.  of  N.  16  Dec.  '20. 

Czechoslovakia       «     ,     ,      .     S.  C.  (Plenary  Session  of  Conf. 

18  Jan.  '19). 

Danzig  (Free  City  of)        .      .     German  Treaty  28  June  '19, 

S.  C.  Act  27  Oct.  '20,  ac- 
cepted by  Danzig  9  Nov.  '20. 

Dodecanese  (Terrl. 
changes).     .     ....       Turkish  Treaty   10  Aug.  '20 

(Cession  to  Italy;  Greco- 
Italian  Treaty  cedes  De.  to 
Greece  10  Aug.  '20). 

Esthonia De  facto  G.   B.   3    May   '18; 

commercial  agreement  20 
July  '20:  not  admitted  L.  of 
N.  16  Dec.  '20;  de  jure  S.C. 
26  Jan.  '21. 

'For  the  recognition  of  new  states  and  territorial  changes,  etc.,  in  Asia  and 
Africa,  see  Temperley,  Ed.,  op.  cit.,  Vol.  VI. 


RECOGNITION  OF  STATES  571 

DATES 

Finland De  jure  G.  B.  5  May  '19;  ad- 
mitted L.  of  N.  16  Dec.  '20. 

Fiume  (Free  State)      .     .     .     Rapallo  Treaty  (It.  and  S.  C.  S. 

State),  12  Nov.  '20;  G.  B. 
14  Feb.  '21. 

Hungary  (new  govt.  and  terrl. 

changes) Hungarian  Treaty  June  4  '20. 

"Certain  frontiers"  (trans- 
fer of  terry,  from  P.  A.  and 
A.  Powers)  and  "New 
States"  Treaties  10  Aug. 
'20. 

Latvia De  facto  G.  B.  11  Nov.  '18;  not 

admitted  L.  of  N.  16  Dec. 
'20;  de  jure  S.  C.  26  Jan. 
'21. 

Liechtenstein Not  admitted  L.  of  N.  17  Dec. 

'20 

Lithuania Not  admitted  L.  of  N.  16  Dec. 

'20. 

Luxemburg  (new  status)    .      .     German  Treaty  28  June  '19; 

admitted  L.  of  N.  16  Dec. 
'20. 

Memel German  Treaty   28  June  '19 

(status  not  defined). 

Montenegro  (new  status)        .     26  Nov.  '18  Podgorica   Assy. 

deposes  King  Nicholas  and 
sends  petn.  for  union  to  Serb 
Regent,  who  issues  decree  1 
Dec.  confirmed  by  Act  of 
Assembly  16  Dec. '18;G.B. 
cancels  exequaturs  of  Mon- 
tenegrin consuls  in  view  of 
union  17  Mar.  '21. 

Poland S.  C.  (18  Jan.  '19)  admission 

to  Plenary  session  of  con- 
ference; de  jure  G.  B.  23 
Feb.  '19;  German  Treaty  28 
June  '19. 

Russia— Soviet       .     .     .     .     De  facto  G.   B.   Commercial 

agrt.  16  Mar.  '21. 


57* 


APPENDIX  IV 


Saar  Territory   .      .     . 

Serb-Croat-Slovene  State 


Schfeswig  (transfer  of  terri- 
tory from  P.  A.  and  A. 
Powers  to  Denmark) .  .  . 


Ukraine 


West  Indies  (Danish)  .     .     . 


DATES 

German  Treaty  28  June  '19. 

U.  S.  A.  5  Feb.  '19;  S.  C.  (in 
absence  of  Italy)  verification 
of  credentials  1  May  '19; 
G.  B.  2  June  '19;  Fr.  6  June 
'19;  It.  (in  German  Treaty 
28  June  '19). 

Slesvig  Treaty  (5  July  '20), 
U.  S.  A.  not  a  party. 

Not  admitted  L.  of  N.  17  Dec. 
'20. 

U.  S.  A.  note  of  cession  by  Den- 
mark 7  May  '17. 


APPENDIX  V 

REPORT  OF  THE  SECOND  CHAMBER 
CONFERENCE1 

PAST  I 

DEAR  PRIME  MINISTER: 

1.  I  have  much  pleasure  in  informing  you  that  the  Second 
Chamber  Conference8  appointed  by  you  on  the  25th  of  August, 
1917,  has  now  completed  its  work,  and  that  I  am  authorized  to 
report  to  you  the  conclusions  at  which  it  has  arrived.  The 
examination,  begun  on  October  2nd,  1917,  of  the  numerous  and 
intricate  questions  which  it  raised  has  occupied  us  more  than  six 
months,  within  which  period  we  were  able,  although  most  of  us 
were  also  occupied  by  work  connected  with  the  War,  to  hold 
forty -eight  sittings,  discussing  these  questions  in  then'  practical 
aspects  and  endeavoring  to  reach  practical  conclusions.  The 
problems  we  had  to  deal  with  presented  difficulties  which  can 
hardly  be  appreciated  except  by  those  who  have  steadily  applied 
themselves  to  a  prolonged  study  of  the  various  issues  involved. 
We  had  to  adapt  an  ancient  institution  to  new  needs,  fitting  it 
in  to  a  system  which  presents  new  conditions,  and  seeking  to 
overcome  prejudices  and  antagonisms  which  generations  of 
party  conflict  had  made  acute.  In  particular  we  have  been 
obliged  to  undertake  the  grave  task  of  finding  a  basis  for  any 
Second  Chamber  which  should  be  different  in  type  and  composi- 
tion from  the  popular  assembly,  by  including  other  elements 
which  might  be  complementary  to  those  which  give  its  character 
to  the  House  of  Commons.  Not  less  difficult  was  it  to  adjust 
the  respective  functions  and  powers  of  the  two  Chambers,  vest- 
ing in  the  Second  Chamber  strength  sufficient  to  enable  it  to  act 

^Conference  on  the  Reform  of  the  Second  Chamber:  Letter  from  Viscount  Bryce 
to  the  Prime  Minister,  1918.  Cmd.  9038. 

The  terms  of  reference  were:  "To  inquire  and  report — 

(1)  as  to  the  nature  and  limitations  of  the  legislative  powers  to  be  exercised 

by  a  reformed  Second  Chamber. 

(2)  as  to  the  best  mode  of  adjusting  differences  between  the  two  Houses  of 

Parliament. 

(3)  as  to  the  changes  which  are  desirabk  in  order  that  the  Second  Chamber 

may  in  future  be  so  constituted  as  to  exercise  fairly  the  functions  appro- 
priate  to  a  Second  Chamber." 

573 


574  APPENDIX  V 

as  a  moderating  influence  in  the  conduct  of  national  affairs,  and 
yet  not  so  much  power  of  delay  as  to  clog  the  machinery  of 
Government,  or  dispose  that  Chamber  to  embark  on  contro- 
versies for  the  sake  of  asserting  its  own  power.  These  were  prob- 
lems which,  although  frequently  and  carefully  examined,  had 
still  remained  unsolved,  nor  had  the  mind  of  the  nation  ever  been 
fully  addressed  to  them. 


4.  The  Scheme  here  submitted  requires  some  explanation 
and  comments.     These  may  be  conveniently  given  if  I  begin  by 
setting  forth  in  the  first  place  the  matters  in  agreement  from 
which  the  Conference  started,  by  then  proceeding  to  trace  the 
lines  upon  which  its  deliberations  moved,  and  by  indicating  the 
considerations  which  led  it  to  the  recommendations  embodied  in 
the  Scheme. 

5.  The  Conference  entered  on  its  task  by  considering  how 
far  its  members  were  agreed  as  to  the  functions  appropriate  to  a 
Second  Chamber,  as  to  the  elements  that  ought  to  be  present  in 
it,  and  as  to  the  place  it  ought  to  fill  in  the  scheme  of  the  Con- 
stitution, and  it  was  found  that  agreement  existed  upon  the 
following  points : — 

FUNCTIONS  APPROPRIATE  TO  A  SECOND  CHAMBER 

6.  (1)  The  examination  and  revision  of  Bills  brought  from 
the  House  of  Commons,  a  function  which  has  become  more 
needed  since,  on  many  occasions  during  the  last  thirty  years, 
the  House  of  Commons  has  been  obliged  to  act  under  special 
rules  limiting  debate. 

(2)  The  initiation  of  Bills  dealing  with  subjects  of  a  com- 
paratively  non-controversial   character  which   may   have   an 
easier  passage  through  the  House  of  Commons  if  they  have  been 
fully  discussed  and  put  into  a  well-considered  shape  before  being 
submitted  to  it. 

(3)  The  interposition  of  so  much  delay  (and  no  more)  in  the 
passing  of  a  Bill  into  law  as  may  be  needed  to  enable  the  opinion 
of  the  nation  to  be  adequately  expressed  upon  it.     This  would 
be  specially  needed  as  regards  Bills  which  affect  the  fundament- 
als of  the  Constitution  or  introduce  new  principles  of  legislation, 
or  which  raise  issues  whereon  the  opinion  of  the  country  may 
appear  to  be  almost  equally  divided. 

(4)  Full  and  free  discussion  of  large  and  important  questions, 
such  as  those  of  foreign  policy,  at  moments  when  the  House  of 
Commons  may  happen  to  be  so  much  occupied  that  it  cannot 
find  sufficient  time  for  them.     Such  discussions  may  often  be 


SECOND  CHAMBER  CONFERENCE       575 

all  the  more  useful  if  conducted  in  an  Assembly  whose  debates 
and  divisions  do  not  involve  the  fate  of  the  Executive  Govern- 
ment. 

ELEMENTS  THAT  OUGHT  TO  FIND  A  PLACE 
IN  THE  SECOND  CHAMBER 

7.  (1)  Persons  of  experience  in  various  forms  of  public  work, 
such  as  judicial  work,  Local  Government  work,  Civil  Service 
work,  Parliamentary  work;  persons  possessing  special  knowledge 
of  important  departments  of  the  national  life,  such  as  Agricul- 
ture, Commerce,  Industry,  Finance,  Education,  Naval  and  Mili- 
tary Affairs;  and  persons  who  possess  a  like  special  knowledge  of 
what  are  called  Imperial  Questions  such  as  Foreign  Affairs  and 
matters  affecting  the  Overseas  Dominions. 

(2)  Persons  who,  while  likely  to  serve  efficiently  in  a  Second 
Chamber,  may  not  have  the  physical  vigour  needed  to  bear  the 
increasing  strain  which  candidacy  for  a  seat  in  the  House  of 
Commons  and  service  hi  it  involve. 

(3)  A  certain  proportion  of  persons  who  are  not  extreme  par- 
tizans,  but  of  a  cast  of  mind  which  enables  them  to  judge  political 
questions  with  calmness  and  comparative  freedom  from  prej- 
udice or  bias.     No  Assembly  can  be  expected  to  escape  party 
spirit,  but  the  excesses  of  that  spirit  usually  can  be  moderated 
by  the  presence  of  a  good  many  who  do  not  yield  to  it. 

POSITION  WHICH  THE  SECOND  CHAMBER  OUGHT  TO 
HOLD  IN  OUR  CONSTITUTIONAL  SYSTEM 

8.  It  was  agreed  that  a  Second  Chamber  ought  not  to  have 
equal  powers  with  the  House  of  Commons,  nor  aim  at  becoming 
a  rival  of  that  assembly.     In  particular,  it  should  not  have  the 
power  of  making  or  unmaking  Ministries,  or  enjoy  equal  rights 
in  dealing  with  finance.    This  was  prescribed  not  only  by  long- 
established  custom  and  tradition,  but  also  by  the  form  of  our 
Constitution,  which  makes  the  Executive  depend  upon  the  sup- 
port of  the  House  of  Commons,  and  would  be  seriously  affected 
in  its  working  by  extending  to  a  Second  Chamber  the  power  of 
dismissing  a  Government. 

All  precautions  that  could  be  taken  ought  to  be  taken  to  se- 
cure that  in  a  Reformed  Second  Chamber  no  one  set  of  political 
opinions  should  be  likely  to  have  a  marked  and  permanent  pre- 
dominance, and  that  the  Chamber  should  be  so  composed  as  not 
to  incur  the  charge  of  habitually  acting  under  the  influence  of 
party  motives.  . 

The  Second  Chamber  should  ami  at  ascertaining  the  mind  and 
views  of  the  nation  as  a  whole,  and  should  recognize  its  full 


576  APPENDIX  V 

responsibility  to  the  people,  not  setting  itself  to  oppose  the 
people's  will,  but  only  to  comprehend  and  give  effect  to  that  will 
when  adequately  expressed. 

It  should  possess  that  moral  authority  which  an  assembly  de- 
rives not  only  from  the  fact  that  its  members  have  been  specially 
chosen  to  discharge  important  public  duties  but  also  from  their 
personal  eminence,  from  their  acknowledged  capacity  to  serve 
the  nation,  and  from  the  confidence  which  their  characters  and 
careers  are  fitted  to  inspire. 

It  should,  by  the  exercise  of  this  authority,  and  especially  by 
evincing  a  superiority  to  factious  motives,  endeavour  to  en- 
lighten and  influence  the  people  through  its  debates,  and  be 
recognized  by  the  people  as  qualified,  when  a  proper  occasion 
arose,  to  require  the  reconsideration  of  important  measures  on 
which  their  opinion  had  not  been  fully  ascertained. 

Lastly,  the  Conference  was  also  of  opinion  that  it  would 
enhance  the  authority  of  the  Second  Chamber,  and  would  be  in 
line  with  the  whole  constitutional  history  of  this  country,  which 
has  been  marked  by  a  steady  and  gradual  development,  broken 
by  no  sudden  and  violent  change,  that  so  far  as  is  possible  a 
continuity  should  be  preserved  between  the  ancient  House  of 
Lords  and  the  new  Second  Chamber,  the  best  traditions  of  the 
former  being  handed  on  to  the  new  body,  so  as  to  enhance  its 
dignity,  and  make  a  seat  in  it  an  object  of  legitimate  ambition. 
The  Great  Council  of  the  Nation  from  which  the  House  of  Lords 
directly  descends,  the  House  of  Commons  having  been  added  to 
it  in  the  thirteenth  century,  is  the  oldest  and  most  venerable  of 
all  British  institutions,  reaching  back  beyond  the  Norman  Con- 
quest, and  beyond  King  Alfred,  into  the  shadowy  regions  of 
Teutonic  antiquity. 

COMPOSITION  OF  THE  SECOND  CHAMBER 

9.  Of  the  three  topics  to  which  the  Reference  directed  its 
attention,  the  Conference  thought  it  best  to  begin  with  that 
which  relates  to  the  composition  of  the  Second  Chamber.     It 
is  the  most  difficult  of  these  topics.     It  was  debated  at  the  great- 
est length,  and  it  provided  the  most  frequent  occasions  for  rec- 
onciling divergent  views. 

10.  The  principle  of  endeavouring  to  preserve  some  real 
measure  of  continuity  between  the  House  of  Lords  and  the  new 
Second  Chamber,  a  principle  accepted  by  all,  though  some  mem- 
bers attached  more  importance  to  it  than  did  others,  suggested 
that  a  certain  portion  of  the  Chamber  should  be  taken  from 
the  existing  peerage,  but  the  other  principle  that  three  important 
requisites  for  the  strength  of  the  Chamber  would  be  found  in  its 
having  popular  authority  behind  it,  in  its  opening  to  the  whole 


SECOND  CHAMBER  CONFERENCE       577 

of  His  Majesty's  subjects  free  and  equal  access  to  the  Chamber, 
and  in  its  being  made  responsive  to  the  thoughts  and  sentiments 
of  the  people,  also  prescribed  that  the  large  majority  of  the  mem- 
bers should  be  so  chosen  as  to  enjoy  that  popular  authority.  It 
is  with  the  constitution  of  this  majority  that  this  narrative 
begins. 

11.  The  Conference  rejected  the  idea  of  having  a  Chamber 
elected  on  the  basis  of  a  property  qualification,  possessed  by  a 
privileged  class  of  voters,  and  also  that  of  requiring  a  property 
qualification  for  the  persons  to  be  elected,  restrictions  which 
have  been  adopted  in  some  countries,  but  which  were  deemed 
unsuitable  to  modern  conditions.     Neither  was  it  thought  that 
the  plan  (sometimes  suggested)  that  the  persons  chosen  to  sit 
should  be  taken  from  certain  prescribed  categories  (e.  g.,  from 
those  who  had  filled  some  public  office)  would  work  well,  for  it 
would  be  very  difficult  to  draw  up  any  satisfactory  list  of  cate- 
gories which  might  not  be  either  too  large  to  be  useful,  or  too 
restricted  to  permit  many  men  of  eminence  and  worth  to  be 
admitted  as  nominees.     The  Conference  then  proceeded  to  ex- 
amine five  methods  that  might  be  adopted  for  constituting  that 
popular  element  in  the  Chamber  which  it  had  been  agreed  to 
make  predominant. 

VARIOUS  ALTERNATIVE  METHODS  OF  COMPOSITION 
I.    NOMINATION 

12.  The  first  method  was  that  of  nomination  by  the  Crown 
acting  through  its  ministers.    This  plan  appeared  unlikely  to 
find  favour  with  the  country,  because  it  did  not  provide  any 
guarantees  for  the  fitness  of  the  persons  who  might  be  nominated, 
and  because  it  would  be  liable  to  be  frequently  employed  as  a  re- 
ward for  political  party  services.     Nor  was  it  held  that  a  provision 
requiring  that  the  persons  to  be  nominated  should  be  taken 
from  certain  prescribed  categories  would  furnish  an  answer  to 
these  objections.1 

H.      DIRECT  ELECTION 

13.  The  second  method  was  Direct  Election  by  the  same 
voters  as  those  who  choose  the  House  of  Commons.     Strong 
arguments  were  advanced  for  this  plan. 

It  would  produce  a  Chamber  both  homogeneous  and  directly 
responsible  to  the  people,  and  with  the  weight  of  their  will  be- 

1  For  the  use  of  nomination  in  recruiting  the  Italian  and  Canadian  Senates,  sec 
A    L.  Lowell,  Governments  and  Parties  in  Continental  Europe,    Vol.  I,  p.  15, 
(Boston,  1896),  and  A.  B.  Keith,  Responsible  Governments  in  the  Dominions. 
Vol.  I,  p.  514  (Oxford,  1912). 


678  APPENDIX  V 

hind  it.  Coming  straight  from  the  people  it  would  enjoy  their 
confidence  and  mirror  their  views  and  ideas.  If  the  elections 
took  place  frequently,  there  would  be  a  constant  ascertainment 
and  renewal  of  the  most  recent  public  opinion,  refreshing  and 
strengthening  the  Second  Chamber. 

14.  On  the  other  hand,  it  was  forcibly  urged  that  a  Chamber 
elected  on  the  same  franchise  as  the  House  of  Commons  would 
inevitably  become  a  rival  of  the  House  of  Commons,  and  would, 
because  it  had  an  equal  "mandate"  from  the  people,  be  likely  to 
claim  equal  financial  powers,  and  tend  to  fall  into  conflict  with 
that  principle  of  the  Constitution  which  assigns  to  the  House 
of  Commons  the  function  of  making  and  unmaking  Adminis- 
trations. Ministers  would  have  two  masters  to  serve  and  to 
fear.  The  persons  directly  elected  would  be  presumably  of  the 
same  general  type  as  those  elected  to  the  House  of  Commons,  so 
that  no  new  element  such  as  is  admittedly  desirable  would 
thereby  be  introduced  into  the  Legislature.  The  Second  Cham- 
ber would  in  fact  be  little  more  than  a  duplicate  of  the  House 
of  Commons,  and  might  either,  as  being  the  less  attractive  body, 
come  to  be  composed  mainly  of  the  surplus  material  of  the  latter, 
or  (alternatively)  by  the  longer  tenure  of  its  members  become 
ultimately  the  more  attractive,  possibly  the  more  influential 
legislative  body.  The  constituencies  which  would  have  to  be 
created  for  a  comparatively  small  body  such  as  the  new  Second 
Chamber  would  be  so  much  larger  than  the  constituencies 
which  now  elect  members  to  the  House  of  Commons,  that  they 
would  be  more  readily  controlled  by  party  organizations.  As 
the  expense  of  contesting  these  larger  constituencies  would 
also  be  heavier,  an  advantage  would  thus  be  given  to  wealthy 
candidates.1 


1  The  Bryce  Conference  does  not  seem  to  have  paid  much  attention  to  Professor 
Ramsay  Muir's  suggestion  of  an  Upper  Chamber  based  on  proportional  represen- 
tation. Professor  Muir  thinks  that  the  break-up  of  the  two  party  system  is  too 
high  a  price  to  pay  for  the  more  truly  representative  House  of  Commons  which 
might  be  secured  by  proportional  representation.  Consequently,  he  says,  "  We 
must  have,  not  above,  but  alongside  of,  the  House  of  Commons,  a  Second  Cham- 
ber, in  which  the  varied  currents  of  national  thought  will  get  representation, 
and  which  shall  be  able  to  rectify  the  rough  partisan  justice  which  is  all  that 
can  be  yielded  by  the  confused  elections  for  the  Commons  House"  (p.  133). 
Professor  Muir  would  continue  the  Commons  in  a  position  to  make  government 
by  any  group  of  men  not  possessing  its  confidence  impossible,  and  to  this  end 
"the  power  of  the  House  of  Commons  to  refuse  supplies  must  be  undivided  and 
final."  Such  a  lower  chamber,  however,  could  represent  only  "the  general 
preference  of  the  nation  as  between  the  program  and  methods  of  one  party  and 
another."  This  inherent  defect  could  be  rectified  by  a  Second  Chamber  possess- 
ing wide  "powers  of  discussion,  amendment,  and  rejection."  Qualification  by 
services  in  the  great  offices  of  state  would  provide  a  useful  element  of  a  Second 
Chamber  but  could  be  relied  upon  only  for  a  small  proportion  of  its  members; 
nomination  for  life  or  for  a  period  of  years  is  inadvisable,  since  the  party 


SECOND  CHAMBER  CONFERENCE       579 

These  considerations  led  the  Conference  as  a  whole  to  de- 
cide against  the  scheme  of  Direct  Election,  and  we  accordingly 
passed  on  to  consider  methods  of  Indirect  Election.  Several 
such  methods  presented  themselves. 

m.      ELECTION  BY  LOCAL  AUTHORITIES 

15.  It  was  suggested  that  the  choice  of  members  of  the 
Second   Chamber  might  be  entrusted  to  Local  Authorities, 
grouped  in  local  areas  of  suitable  size.    The  Councils  of  coun- 
ties and  of  county  boroughs,   possible  with  the  addition  of 
Councils  of  the  larger  non-county  boroughs,  urban  districts,  and 
rural  districts,  might  constitute  such  electing  bodies,  or  dele- 
gates from  these  Local  Authorities  might  be  formed  into  what 
are  called  "electoral  colleges"  for  certain  local  territorial  areas. 
In  this  way  an  electorate  of  picked  men,  chosen  by  the  people 
in  their  several  local  government  areas,  and  in  so  far  qualified 
to  represent  the  people,  might  be  created;  and  these  would 
select  for  the  Second  Chamber  men  of  local  influence  and  prac- 
tical experience  in  affairs.     Such  elections  might  be  conducted 
without  the  cost  and  the  partisanship  which  seem  inseparable 
from  direct  elections,  and  might  give  as  good,  or  even  a  better, 
result  in  the  quality  of  the  persons  selected. 

16.  Although  this  plan  had  the  great  attraction  of  providing 
a  new  basis  for  a  Second  Chamber,  several  objections  were  taken 
to  it.     It  was  argued  that  it  would  certainly  introduce  party 
politics  into  the  elections  of  those  County  Councils  and  Borough 
Councils  which  had  hitherto  been  conducted  on  non-party  lines, 
and  would  intensify  party  spirit  in  those  local  elections  where 
that  spirit  already  existed  in  a  mild  form,  or  in  those  which  turn 
upon  issues  different  from  the  issues  raised  in  Parliamentary 
contests.    The  result  would  be  to  lead  local  government  voters 


cleavage  in  the  House  of  Commons  would  be  accentuated  instead  of  corrected; 
indirect  election  would  have  a  disastrous  effect  on  the  bodies  exercising  the 
function,  and  the  party  test  could  not  be  avoided;  the  use  of  a  limited  franchise 
would  have  the  Second  Chamber  "stand  primarily  for  class  interests  and  tend 
to  exacerbate  class  conflicts,"  and  "it  would  inevitably  awaken  the  suspicion  or 
hostility  of  the  unrepresented  majority."  The  only  remaining  alternative,  ac- 
cording to  Professor  Muir,  is  the  election  of  a  Second  Chamber  on  a  democratic 
franchise,  but  in  such  a  way  as  not  to  reproduce  the  character  and  organization 
of  the  House  of  Commons.  This  could  be  avoided  by  proportional  represen- 
tation (the  single  transferable  vote),  the  country  electing,  say,  200  members 
of  a  Second  Chamber  from  20  constituencies.  To  this  membership  not  more 
than  fifty  life  peers  could  be  added  selected  on  the  basis  of  service  in  high 
public  places.  Professor  Muir  thinks  disputes  unlikely,  for  the  Ministry  would 
give  weight  to  the  opinions  of  such  a  chamber;  deadlocks  could  not  continue 
long,  for  Upper  Chamber  would  have  to  stand  for  reelection,  and  in  other  cases 
"it  would  be  easy  enough  for  the  two  chambers  to  settle  the  matter  in  a  joint 
session."  Peers  and.  Bureaucrats,  pp.  225-243  (London.  1910). 


580  APPENDIX  V 

to  think,  when  they  were  voting,  more  of  a  candidate's  political 
opinions  than  of  his  fitness  for  local  work,  while  it  would  cause 
the  Councils  themselves  to  be  divided,  in  the  discharge  of  their 
proper  functions  of  local  administration,  upon  party  lines,  and 
would  thus  impair  their  efficiency.  As  the  members  of  local 
government  bodies  are  now  selected  for  duties  which  have  little 
to  do  with  national  politics,  there  was  no  solid  ground  for  thrust- 
ing upon  them  the  very  different  duty  of  choosing  a  body  fitted 
to  discharge  the  political  functions  of  a  Second  Chamber.  In 
many  large  districts  of  Great  Britain,  the  local  borough  and 
county  councils  are  composed  predominantly  of  members  of 
some  one  political  party,  so  that  in  those  districts  that  party, 
whichever  it  was,  would  capture  almost  the  whole  of  the  repre- 
sentation in  the  Second  Chamber,  the  men  of  merit  who  did  not 
belong  to  that  party  being  passed  over,  and  the  voters  belonging 
to  it  being  left  unrepresented.  Even  the  adoption  of  propor- 
tional representation  would  not  remedy  this  evil. 
These  latter  arguments  ultimately  prevailed. 

IV.      SELECTION  BY  A  JOINT  STANDING  COMMITTEE  OF 
BOTH  HOUSES 

17.  A  fourth  plan  was  then  examined.     It  was  that  of  plac- 
ing the  selection  of  the  Second  Chamber  in  the  hands  of  some 
weighty,  impartial,  and  independent  authority,  constituted  in 
accordance  with  the  proposal  made  in  paragraph  27  of  this  Re- 
port for  the  selection  of  those  Members  of  the  Second  Chamber 
who  will  be  taken  in  the  first  instance  from  the  Peerage. 

Those  who  supported  these  views  recommended  that  the 
Members  of  the  Second  Chamber,  whether  selected  from  the 
Peerage  or  not,  might  be  chosen  by  a  Committee  of  Selection, 
drawn  in  equal  or  nearly  equal  numbers,  from  both  Houses  of 
Parliament;  that  this  Committee  or  Commission  should  be  a 
small  one,  not  exceeding  20  hi  number,  that  its  Members  might, 
in  the  first  instance,  be  selected  by  agreement,  and  that  the 
names  of  the  original  Members  might  be  given  in  a  schedule 
of  the  Bill  for  reconstituting  the  Second  Chamber,  and  thus  ob- 
tain the  sanction  of  both  Houses  of  Parliament.  Two  Members 
of  the  Commission  might,  it  was  thought,  retire  every  year,  and 
the  vacancies  thus  created,  as  well  as  casual  vacancies,  might  be 
filled  by  cooption.  The  names  of  the  new  Members  should  be 
laid  upon  the  Table  of  both  Houses  for  30  days  in  order  to  af- 
ford Parliament  an  opportunity  of  taking  exception  to  the 
proposed  selection.  If,  in  either  House,  a  motion  were  made 
and  carried  that  the  nomination  be  not  approved,  it  could  be 
cancelled  and  a  fresh  nomination  required. 

18.  While  the  scheme  thus  outlined  found  considerable  sup- 


SECOND  CHAMBER  CONFERENCE        581 

port  in  the  Conference,  the  majority  thought  it  essential  to 
provide  a  broader  basis  for  the  Second  Chamber  than  election 
by  any  Commission,  even  one  set  up  and  renewed  by  Parlia- 
ment, could  furnish.  These  members  sought  that  broader 
basis  in  the  election  of  a  Second  Chamber  by  Parliament  itself. 
They  urged  that,  while  a  commission  such  as  that  proposed 
would  no  doubt  bring  into  the  Second  Chamber  men  of  per- 
sonal eminence,  this  fact  alone  was  not  sufficient  to  justify  the 
method,  as  it  was  universally  admitted  that  both  high  ability 
and  personal  eminence  were  to  be  amply  found  in  the  existing 
House  of  Lords.  Nor,  in  then*  view,  was  it  enough  to  secure 
that  the  new  Second  Chamber  should  be  a  balanced  body. 
What  was  necessary  was  that  it  should  be  as  far  as  possible  a  rep- 
resentative body.  They  held  that  since  direct  election  by  the 
voters  had  been  ruled  out  by  difficulties  (already  indicated) 
which  had  been  deemed  insuperable,  the  nearest  approach  to 
the  advantages  claimed  for  the  method  of  direct  election  was 
to  vest  the  selection  of  the  bulk  of  members  of  the  Second 
Chamber  in  the  persons  whom  the  voters  had  chosen  to  repre- 
sent them  in  Parliament. 


V.      ELECTION  BY  THE  HOUSE  OF  COMMONS 

19.  There  were  two  ways  in  which  this  might  be  done.  The 
House  of  Commons  might  vote  as  a  whole  for  the  election  of  a 
Second  Chamber,  or  it  might  be  divided  into  groups,  each  of 
which  would  be  entrusted  with  the  election  of  a  certain  number 
of  members  of  the  Second  Chamber.  It  was  objected  to  the 
former  course  that  an  election  by  the  whole  of  the  House  of 
Commons  must  inevitably  become  a  purely  party  contest,  a 
contest  which  would  be  managed  by  the  party  Whips  and 
would  turn  upon  the  party  pledges  or  party  services  of  the 
persons  to  be  elected,  too  little  regard  being  paid  to  their 
personal  qualifications.  Proportional  Representation,  it  was 
thought,  would  not  remove  this  objection,  as  it  would  not  be 
practicable  if  applied  to  an  election  in  which  the  list  of  candi- 
dates might  contain  several  hundred  names,1  and  in  which  the 
quota  would  be  so  low  that  a  very  few  electors  could,  by  com- 
bining together,  secure  the  return  of  any  candidate.  Such  an 

^^^_^^^__  .  — .  .  4 

Thomas  Hare's  original  plan  for  proportional  representation  proposed  a 
single  constituency  for  the  whole  of  the  United  Kingdom  for  the  election  of  654 
members  to  the  House  of  Commons.  It  did  not  seem  to  Hare  an  insuperable 
objection  that  the  elector  would  have  two  or  three  thousand  candidates  to  choose 
from.  The  Election  of  Representatives,  Chapter  II  (3d  ed.,  London,  1865). 
For  some  interesting  facts  with  regard  to  the  difficulty  of  securing  information 
concerning  candidates  for  office  in  the  United  States,  see  A.  M.  Kales,  Unpopular 
Government  in  the  United  States,  p.  37  (Chicago,  1914). 


APPENDIX  V 

would,  thudun,  fafl  to  secure  the  kind  of  Chamber 

is  believed  to  desire. 

On  the  other  hand,  if  the  membets  of  the  House  of  Corn- 
to  be  divided  into  groups  representing  certain  large 
of  the  country,  and  were  to  meet  in  such  groups  to 
the  persons  they  held  to  be  best  fitted  for  the  Second 
the  dangers  just  referred  to  would  be  less  likely  to 
The  fHMiili*! «  of  Parliament  composing  the  groups 
might  be  eatfiected  to  know  the  men  best  fitted  to  represent  the 
needs  and  wishes  of  the  parts  of  the  country  from  which  they 
themselves  come,  and  they  would  act  under  a  sense  of  re- 
57-:  -5 :;'„:;.-  ::  :.hrlr  constituents  vftici  BonU  Hi  h-e  e^forc-ed 
upon  the  House  of  Commons  as  a  whole.  They  would  be  able 
to  meet,  in  numbers  not  too  large  for  friendly  discussion  and 
compromise,  to  select  persons  who  would  better  represent  the 
different  political  parties,  and  they  might  also  reserve  a  number 
of  seats  for  men  who  were  not  active  party  politicians,  but 
•junul  qualified  to  regard  current  questions  in  a  fair  and  im- 
partial spirit. 

21.  These  considerations  secured  a  marked  preponderance 
die  Conference  for  this  plan  over  that  of  an  election  by  the 

of  Commons  acting  as  a  whole,  and  when  the  question 
to  be  between  this  second  or  "Group"  scheme  and  the 
fourth  plan,  described  in  paragraph  17,  that  of  election  by  an 
electoral  Commission  of  Uembers  of  both  Houses,  the  scheme  of 
^•Iff  liiMi  by  geographical  groups  of  Mi  mln  1 1  of  the  House  of 
t  V»MHmit*  ^p^ali^^l  the  larger  support. 

22.  Those,  however,  who  supported  this  fourth  plan  remained 

House  of  Commons,  even  acting  by  groups,  and  desired  to  have 
it  placed  on  record  that  they  woe  opposed  on  the  following 
grounds  to  the  method  of  composition  recommended  by  the 
majority  of  the  CsBfaoKe.1 

93L  They  held  it  improbable  that  election  by  groups  of 
Members  of  Parliament  would  produce  a  body  of  men  possess- 
ing the  attributes  JBquinsd  for  a  Second  Chamber,  or  well  qual- 
ified to  assume  the  fsailinsa  assigned  to  that  body.  Elected 
by  mem  who  were  themselves  inevitably  jpsilii  in  they  could 
(so  it  was  **"»Bgk*)  SLaredjy  be  T^jmf1'1  to  be  themselves 
free  from  partisanship.  They  would  almost  inevitably  be 
chosen  as  party  men  and  feel  themselves  bound  by  party  ties. 
Apart  from  this  it  was  feared — so  these  members  argued — 


cf  Imnsdo-wnt,  Eari  of  Own-cm.  Eni  of 

Lord  Srdenham,  Lord  Hn^k  CedL 
not  supporting  the  fourth  piu.  doves  to  jam  m 


SECOXD  CHAMBER  COXFEREXCE       583 

that  the  system  would  lend  itself  to  transactions  and  bargains 
of  the  most  undesirable  kind.  A  very  small  number  of  the 
electors  could  by  proportional  machinery  choose  a  member  of 
the  Second  Chamber.  There  would  often  be  an  irresistible 
temptation  to  choose  persons,  not  because  of  their  eminence  or 
their  fitness  to  take  part  in  the  business  of  the  Second  Chamber, 
but  because  it  was  desired  to  reward  them  for  party  services, 
political  or  pecuniary,  or  even  because  of  personal  friendship. 
If  it  were  open  to  the  groups  to  choose  sitting  Members  of  the 
House  of  Commons,  the  opportunity  could  be  used  to  place  the 
seats  of  such  Members  at  the  disposal  of  party  candidates,  or 
in  other  cases,  to  get  rid  of  a  Member  whose  popularity  was 
waning  in  order  to  replace  him  by  one  more  enterprising  and 
useful  to  his  party.  They  apprehended  that  in  all  these  trans- 
actions, which  ought  take  an  infinite  variety  of  shapes,  the 
Party  organization,  supported  by  the  large  funds,  derived  from 
various  sources,  which  it  controls,  would  tend  to  make  itself 
more  felt  than  ever.  They  further  urged  that  if  the  functions 
and  position  of  the  Second  Chamber  were  to  be  those  which 
the  Conference  had  decided  to  assign  to  it,  it  ought  to  be  dif- 
ferent from  the  House  of  Commons  in  character  and  unlikely  to 
become  its  rival,  and  that  it  would  therefore  be  unwise  to  set 
up  alongside  of  the  House  of  Commons  a  Second  Chamber 
founded  upon  the  same  elective  principle  as  that  which  gives  au- 
thority to  the  House  of  Commons,  but  possessing  that  authority 
in  slighter  measure  and  working  through  a  machinery  open  to 
grave  criticism.  Being  itself  a  creation  of  the  House  of  Com- 
mons it  would  furnish  an  insufficient  check  on  that  body. 

24.  In  reply  to  these  arguments  it  was  contended  that  the 
responsibility  of  Members  of  the  House  of  Commons,  electing 
in  groups,  to  their  own  constituents  and  to  the  great  mass  of 
voters  of  the  large  area  which  they  would  for  this  purpose 
represent,  would  restrain  that  partisanship  which  was  so  much 
feared.  The  groups  would  be  anxious  to  return  persons  of 
high  political  standing,  and  also  to  study  local  sentiment. 
Thus  they  would  not  be  subservient  to  the  control  of  party 
managers  and  Whips,  and  this  responsibility  would  give  a 
guarantee  against  the  exercise  of  the  kind  of  undue  influence 
which  was  apprehended.  Supposing  such  a  centre  of  corrupt- 
ing influences  to  exist,  it  might  reasonably,  they  argued,  be 
maintained  that  a  small  Electoral  Commission,  even  one  ap- 
pointed under  the  authority  of  Parliament  and  from  members 
of  Parliament,  would  be  not  less  open  to  the  action  of  such 
influences  than  would  be  the  numerous  and  considerably  larger 
electing  bodies  composed  of  members  of  the  House  of  Com- 
mons which  form  the  basis  of  the  scheme  here  recommended. 


584  APPENDIX  V 

As  to  the  need  of  a  principle  of  differentiation  between  the 
Second  Chamber  and  the  House  of  Commons,  which  would 
prevent  any  tendency  of  the  former  to  become  a  rival  of  the 
latter,  they  were  agreed.  They  found  such  a  principle  not  only 
in  the  indirectly  representative  character  of  a  Second  Chamber 
based  upon  election  by  the  House  of  Commons  but  also  in  the 
other  differences  which  were  features  of  the  scheme  as  a  whole 
and  are  detailed  below — the  proposed  longer  tenure,  the  dif- 
ferent legislative  and  financial  powers  and  the  smaller  size  of 
that  body.  Moved  by  these  considerations,  the  majority  of 
the  Conference  adhered  to  the  method  of  election  by  members 
of  the  House  of  Commons  grouped  in  territorial  areas  which 
will  be  found  set  out  in  Part  II  of  the  report. 

METHOD  OF  COMPOSITION  ADOPTED 

25.  The  method  of  election  by  Members  of  the  House  of 
Commons  grouped  in  large  territorial  areas  having  been  thus 
adopted  by  the  large  majority  of  the  Conference,  the  next  step 
was  to  constitute  the  proposed  geographical  groups  to  which 
the  function  of  electing  should  be  assigned,  and  to  settle  the 
number  of  seats  hi  the  Second  Chamber  which  each  group 
should  elect,  the  respective  populations  of  the  areas  of  these 
geographical  groups  being  taken  as  the  basis  for  the  number  of 
seats  to  be  allotted  to  each  area.  It  was  necessary  that  the 
areas  should  be  comparatively  few,  that  the  boundaries  of 
counties  should  be  respected,  and  that  their  respective  popu- 
lations should,  so  far  as  possible,  be  nearly  equal.  The  plan 
of  voting  by  Proportional  Representation,  which  was  adopted 
because  it  would  help  to  secure  a  due  representation  of  all  po- 
litical parties,  made  it  desirable  that  the  number  of  seats  to  be 
filled  by  each  group  should  be  not  less  than  five  at  each  election. 
Thus,  assuming  that  the  Chamber  should  be  (as  hereafter  ex- 
plained) renewed  by  one-third  at  a  time,  the  total  number  of 
seats  to  be  allotted  to  the  area  of  each  group  would  be  not  less 
than  fifteen.  These  considerations  and  an  examination  of  the 
economic  conditions,  agricultural,  manufacturing,  and  com- 
mercial, of  the  different  parts  of  Great  Britain,  and  of  the  re- 
spective characters  and  affinities  of  their  inhabitants,  led  us  to 
a  division  of  the  Island  into  thirteen  areas  for  the  election  of 
the  Second  Chamber.  All,  or  nearly  all,  of  these  areas  have 
the  advantage  of  being  what  may  be  called  "natural  entities," 
the  counties  which  compose  each  area  having  a  certain  natural 
connection  with  one  another,  and  some  of  them  even  a  measure 
of  distinctive  racial  quality,  corresponding  to  those  ancient 
divisions  of  the  country  out  of  which  the  United  Kingdom  has 
grown.  .  .  .  The  total  number  of  members  of  the  Second 


SECOND  CHAMBER  CONFERENCE       585 

Chamber  who  would  be  chosen  on  this  plan  for  Great  Britain 
is  246.  The  number  to  be  allotted  to  Ireland,  and  the  method 
by  which  Members  of  the  Second  Chamber  coming  therefrom 
were  to  be  chosen  was  reserved,  pending  a  settlement  of  the 
questions  which  affect  the  representation  of  Ireland  in  the 
House  of  Commons. 

26.  The  large  majority  of  the  Second  Chamber  having  been 
thus  constituted  upon  a  principle  which  was  deemed  such  as 
would  give  a  thoroughly  popular  character  to  the  Chamber  as 
a  whole,  the  Conference  had  next  to  consider  the  means  by 
which  the  historical  continuity  of  the  reconstructed  Second 
Chamber  with  the  ancient  House  of  Lords  could  be  preserved. 
Two  arguments  enforced  the  desirability  of  avoiding  a  complete 
breach  with  the  past.  One  has  already  been  adverted  to.  The 
respect  which  it  is  desirable  that  the  nation  should  feel  for  the 
Second  Chamber  will  be  all  the  greater  if  it  be  regarded  as 
an  ancient  institution  remodelled  in  accordance  with  modern 
views  and  feelings  rather  than  as  a  brand-new  creation.  The 
other  consideration  was,  that  among  the  existing  peers  there 
are  many  men  of  distinguished  ability  and  long  experience  in 
legislation  and  administration,  men  whose  services  the  country 
would  desire  to  retain.  It  was  accordingly  determined,  some 
few  dissenting,  that  a  part  of  the  Second  Chamber  should  be 
chosen  from  the  peers.  It  was  also  deemed  proper  (though 
again  with  some  difference  of  opinion)  that  among  those  to  be 
thus  selected  a  certain  small  number  should  be  taken  from  the 
Episcopal  bench.  The  Spiritual  peers  constitute  one  of  the  most 
ancient  elements  of  the  Great  Council  of  the  Nation,  having  sat 
in  that  Council  before  the  Norman  Conquest  and  formed  at 
some  moments  before  the  Reformation  (including  the  mitred 
abbots)  about  one-half  of  it.  Thus,  as  the  principle  of  con- 
tinuity suggested  their  presence,  so  it  was  also  urged  by  some 
members  that  the  legal  position  which  the  Church  of  England 
holds,  Parliament  being  the  body  which  legislates  for  it,  made 
it  proper  to  have  in  the  legislature  persons  entitled  to  speak  on 
its  behalf  and  directly  conversant  with  the  works,  ocial  as  well 
as  religious,  which  it  performs.  In  fixing  the  number  to  be 
taken  from  the  existing  House  of  Lords  it  was  thought  proper 
to  make  it  somewhat  larger  at  the  outset,  in  order  to  find  room 
for  those  peers  who  had  been  taking  an  active  share  in  public 
business,  than  it  need  continue  to  be  in  the  future  years.  Ac- 
cordingly the  Conference  recommends  that  the  number  of  this 
Section  should  be  fixed  at  eighty-one,  that,  in  the  first  instance, 
the  whole  Section  should  be  chosen  from  the  Peers,  but  that 
subsequently,  the  number  of  Peers  in  this  Section  should  be 
gradually  reduced,  in  the  manner  described  in  paragraph  36,  to 


586  APPENDIX  V 

thirty,  the  remaining  fifty-one  seats  being  thus  thrown  open  to 
persons  who  need  not  be  Peers.  As  will  presently  be  seen,  it  is 
thought  necessary  that  both  numbers,  the  temporary  and  the 
permanent,  should  be  divisible  by  three. 

27.  For  the  election  of  these  Peerage  Members  two  alter- 
native courses  were  open.  One  was  to  let  them  be  chosen  by 
the  whole  body  of  Peers.  This  was  rejected  largely  for  the 
same  reasons  as  had  prevailed  against  the  election  of  Members 
of  the  Second  Chamber  by  the  House  of  Commons  as  a  whole, 
namely,  that  the  election  would  be  likely  to  fall  under  the 
control  of  party  motives  and  party  managers.  The  alternative 
course  was  to  create  a  Committee  of  Parliament,  specially 
qualified  for  this  delicate  function.  The  Conference  accord- 
ingly proposes  that  a  Joint  Standing  Committee  of  both  Houses 
of  Parliament  be  set  up  to  be  composed  of  men  of  authority 
and  experience,  and  representing  every  political  party.  Those 
members  of  this  Commission,  who  would  come  at  the  first 
election  from  the  present  House  of  Lords,  and  thereafter  from 
the  new  Second  Chamber,  would  be  chosen  by  the  Committee 
of  Selection  in  that  House.  The  members  coming  from  the 
House  of  Commons  might  be  chosen  by  the  Speaker.  It  is 
suggested  that  five  persons  from  each  House  would  form  a  suf- 
ficiently large  Electoral  Commission  or  Committee.  It  would 
be  set  up  at  the  beginning  of  each  Parliament,  and  such  va- 
cancies as  may  occur  in  its  membership  would  be  filled  up  by 
the  Second  Chamber  Committee  of  Selection,  or  by  the  Speaker 
of  the  House  of  Commons,  as  the  case  might  be.  Such  a  Com- 
mittee might  be  trusted  to  see  to  it  that  due  representation  was 
given  to  every  shade  of  political  opinion. 


PERIOD  OF  TENURE  or  A  SEAT  IN  THE  SECOND  CHAMBER  ' 

28.  From  the  principle,  generally  accepted  hi  this  country 
and  universally  acted  upon  in  other  countries,  that  a  Second 
Chamber  shall,  as  compared  with  the  larger  and  directly  elected 
House,  represent  the  more  permanent    mental  attitude  and 
tendencies  of  the  nation,  and  be  more  exempt  from  sudden  and 
violent   fluctuations   of  opinion,   two   conclusions   seemed   to 
follow : 

First.  That  the  tenure  of  a  member  of  the  Second  Chamber 
shall  be  longer  than  that  of  a  member  of  the  House  of  Commons. 
i  Secondly.  That  the  Second  Chamber  shall  not  be  renewed 
in  its  entirety  all  at  once,  but  as  to  a  part  only,  a  proportion  of 
its  members  retiring  at  stated  intervals. 

29.  It  is  therefore  recommended,  applying  these  conclusions, 
that  the  tenure  of  a  seat  in  the  Second  Chamber  be  fixed  at 


SECOND  CHAMBER  CONFERENCE       587 

twelve  years  for  both  the  above-mentioned  Sections;  and  that 
one-third  of  each  Section  shall  retire  every  fourth  year. 
This  plan  seems  to  offer  two  advantages — 

(a)  that  the  Second  Chamber,  while  not  suddenly  changing 
as  a  whole  under  a  momentary  popular  impulse,  shall  be 
kept  in  constant  touch  with  public  opinion  in  a  way 
which  could  not  be  secured  under  a  scheme  of  Life 
Tenure,  and 

(&)  that  it  will  always  contain  a  considerable  section  of 
members  who  will  have  acquired  legislative  experience 
and  a  mastery  of  public  affairs  by  a  service  of  some 
length. 

30.  The  following  table  shows  the  proposed  composition  of 
the  Second  Chamber: 


SECTION 

NTMIU.H 

PEBIOD   OF  TENURE   OF  BEATS 

I.  —  Persons  elected  by  Members 
of  the  House  of  Commons 
grouped  in  territorial  areas 

246 

12  years   (one-third  to  retire 
every  4  years) 

II.  —  Persons  elected  by  a  Joint 
Standing  Committee  of 
both  Houses 

81 

12  years   (one-third  to  retire 
every  4  years) 

NECESSARY  MODIFICATIONS  IN  THE  CASE  OF  THE  SECOND 
CHAMBER  TO  BE  FIRST  CONSTITUTED 

31.  The  system  here  set  forth  for  the  composition  of  the 
Second  Chamber  does  not  admit  of  being  applied  in  its  entirety 
to  the  composition  of  the  Second  Chamber  to  be  first  constituted. 
An  essential  feature  of  this  system  is  that  not  more  than  one- 
third  of  the  major  portion  of  the  Chamber  should  be  elected  at 
any  one  time  or  by  a  single  House  of  Commons.  It  is  pro- 
posed to  meet  this  difficulty  which  arises  in  the  case  of  the  initial 
constitution  of  the  Second  Chamber  as  follows: 


AS  REGARDS  THE  SECTION  TO  BE  ELECTED  BY  THE 
HOUSE  OF  COMMONS 

32.  One-third  of  this  section  should  be  elected  by  members 
of  the  present  House  of  Commons  grouped  in  territorial  areas 
according  to  the  plan  proposed  for  all  subsequent  elections  of 
the  Second  Chamber.  This  third  should  retire  at  the  end  of 
four  years. 

One-third  of  this  portion  of  the  Second  Chamber  should  be 
similarly  elected  by  members  of  the  next  House  of  Commons, 
and  retire  at  the  end  of  eight  years. 


APPENDIX  V 

The  remaining  third  would  be  elected  by  the  Joint  Com- 
mittee of  both  Houses  already  provided  for  the  purpose  of 
electing  that  portion  of  the  Second  Chamber  in  which  members 
of  the  Peerage  are  to  be  represented. 

This  remaining  third  should  sit  for  the  foil  period  of  twelve 
jHts.  (See  the  Table  below.) 

On  this  system,  at  the  end  of  four  years  the  machinery  of 
election  by  the  House  of  Commons  existing  at  the  time 
when  each  quadrennial  period  ended  would  come  into  full 
npoiliiMi,  and  at  the  end  of  twelve  years,  the  whole  of  the  Sec- 
ond Chamber  would  have  been  constituted  according  to  the 
method  here  proposed,  every  elected  member  sitting  for  twelve 
years,  and  the  Chamber  being  renewed  by  one-third  every  four 
Jens. 

33.  It  wffl  be  seen  that  it  is  assumed  that  a  start  wffl  be  niade 
with  the  composition  of  the  new  Second  Chamber  during  the 
lifetime  of  the  present  House  of  Commons.    If  legislation  for 
the  constitution  of  the  Chamber  were  to  be  deferred  until  the 
next  Parliament,  certain  mnHifira»rif»ng  would  obviously  have 
to  be  made. 

34.  The  question  arises  which  of  the  three  electing  agencies 

.of  a  third  of  the  Second  Chamber 


first.  It  is  conceived  that  the  Joint  Standing  Commission 
should  elect  first,  on  the  ground  that  such  a  body  would  be  well 
qualified  to  have  regard  in  mating  its  choice  to  the  country  as 
a  whole,  and  thmt  include  persons  of  eminence  who  might  not 
have  any  connectkMi  with  particular  y^y*i4riinil  areas. 


AS  REGARDS  THIS  SECTTOX  TO  BE  ELECTED  BY  THE  JOINT 
STANDING   COJOCLSSIOX 

35.  As  the  whole  of  this  section  is  to  be  elected,  on  the  first 
as  on  future  occasions,  by  the  Joint  Commission,  the  Confer- 
ence think  that  it  may  be  left  to  the  Commission  to  assign  to 
the  persons  chosen  a  term  of  four,  eight,  or  twelve  years,  re- 
spectively, as  it  may  think  fit. 

36.  As  stated  above  the  election  on  this  first  occasion  would 
be  from  the  Peers  exclusively. 

At  the  second  and  third  elections,  however,  the  principle 
above  leferied  to,  of  gradually  throwing  open  the  section  to 
other  persons  besides  Peers,  should  be  put  into  operation,  and 
at  these  elections  half  only  of  the  vacancies  should  be  reserved 
for  Peers,  while  at  subsequent  elections  the  choice  of  the  Joint 
Committee  should  be  unrestricted,  subject  only  to  the  provision 
that  the  number  of  Peers  so  selected  sitting  in  the  Second 
Qaabcr  should  not  falbdpn  thirty. 


SECOND  CHAMBER  CONFERENCE 


37.  TABLE  SHOWING  METHOD  PROPOSED  FOR  THE  COMPOSRIO 
or  THE  SECOXD  CHAMBER  AT  THE  OCTSET 


s»cnox 

WBT  HOP  OP  OQMPQBKCUf 

ra  OP  mum 

L    Majority  of  Boose;  216 

L    Election  by  Members 
of  present  House  of 
Commons,  82 
2.    Election  by  Member* 
of  next    House  of 
Commons,  82 
3.    Election  by  Joint 
Standing    Commis- 
sion of  both  Houses, 
82 

4  yean 

12yeara 

EL    Sectian  chosen  by  Joint 

ijt^ji^J^Ffcy  *  *^*FiiiitTnjiMfi 
of  both  Houses,   81 

Election   by  Joint 
Standing     Commis- 
sion of  both  Houses. 

4,  8,  and 
12  yean 

GENERAL  PROYISIOXS  RELATING  TO  THE  COMPOSITION  or  THE 
SECOND  CHAMBER 

38.  Some  other  points  relating  to  the  composition  of  the 
Second  Chamber  remain  to  be  mentioned.  One  of  these  re- 
lates to  the  Law  Lords,  who  sit  under  the  Appellate  Jurisdiction 
Acts,  1876  and  1887.  It  is  thought,  that  if  and  so  long  as  the 
Second  Chamber  continues  to  discharge  the  judicial  functions 
now  "liHiHiHE" [l  by  the  House  of  Lords  as  Supreme  Court  of 
Appeal,  these  high  judicial  personages  should  continue  to  sit 
as  ex  cfficio  members.  Their  presence  wiU  add  to  its  delibera- 
tions an  element  of  special  knowledge  and  long  experience  which 
will  doubtless  be  available  in  the  future,  as  it  has  been  in  the 
past,  for  the  purpose  of  revising  Bills  and  securing  that  the 
form  in  which  they  pass  shall  be  legally  correct.  The  same 
considerations  apply  to  the  Lord  Oamnrilnr  and  to  those  ex- 
Lord  Chancellors  who  take  part  in  the  judicial  business  of  the 
House.  It  is  suggested  that  they  ought  to  remain  ex  pJKnb 
l»«jMiMjji  while  they  sit  as  Judges  of  Appral.  It  has  long  been 
the  practice  that  members  of  the  Royal  House,  created  Peers, 
should  sit  in  that  capacity,  though  for  some  gnmilwifv  past 
they  have  neither  joined  in  debate  nor  otherwise  taken  part 
in  political  He.1  The  Conference  thought  that  this  practice 

iln  March,  1922.  during  the  debates  on  the  Irish  Free  State  (Agreement) 
KB,  the  House  of  Lords  discussed  the  propriety  of  Lav  Lords  making  party 
qM^ffas  to  the  country.  lord  Birkenhead  (the  Lord  Chancellor)  "asserted 


590  APPENDIX  V 

might  be  so  far  continued  as  to  allow  the  sons  and  grandsons  of 
a  Sovereign  to  sit  in  the  Second  Chamber. 

39.  Doubts  arose  as  to  whether  the  Lord  Chancellor  should 
continue  to  act  as  Chairman  of  the  Second  Chamber  by  appoint- 
ment of  the  Crown  for,  though  he  puts  the  question  in  the 
House  of  Lords,  he  is  not  responsible  for  keeping  order  there 
and  does  not  call  upon  members  to  rise  and  speak,  and,  being 
a  member  of  the  Cabinet,  he  joins  in  debate  on  behalf  of  the 
Government,  and  votes  in  a  division.     The  view,  however,  pre- 
vailed that  the  traditions  of  his  high  office  should  continue  to 
add  dignity  to  the  position  of  Speaker  of  the  Chamber. 

40.  Several  other  questions  relating  to  the  composition  of 
the  Second  Chamber  require  a  brief  mention. 

The  disqualifications  for  membership  of  the  House  of  Com- 
mons now  by  law  existing,  ought,  for  the  most  part,  to  be  ap- 
plied to  the  Second  Chamber  also,  excepting,  however,  those 
which  exclude  the  Clergy  of  the  Established  Churches  of  Eng- 
land and  Scotland,  and  of  the  Roman  Catholic  Church.1 
Whether  the  provisions  which  exclude,  with  certain  important 
exceptions,  persons  holding  offices  of  profit  under  the  Crown, 
individuals  or  members  of  firms  holding  contracts  with  the 
Government,  and  also  the  holders  of  pensions  paid  out  of  public 
funds,  should  be  applied  to  the  Second  Chamber — these  are 
questions  which  deserve  serious  examination.  They  are,  how- 
ever, of  so  delicate  a  nature,  the  law  as  regards  contractors 
being  in  particular  intricate,  and  in  some  points  obscure,  that 
it  was  thought  better  not  to  enter  minutely  into  them,  but  to 
be  content  with  commending  them  to  the  attention  of  His 
Majesty's  Government,  when  they  and  their  legal  advisers 
proceed  to  draft  a  Bill  for  dealing  with  the  matter. 

It  was  conceived  that  Peers  who  have  not  been  elected  to  the 


that  it  was  one  of  the  unwritten  conventions  that  a  Law  Lord,  and  other  Judges, 
should  avoid  an  active  part  in  politics,  and  the  question  provoked  a  debate  of 
great  interest.  Lord  Carson  denied  that  he  had,  consciously  or  unconsciously, 
broken  any  rule  or  tradition  of  the  House  of  Lords  by  his  speeches.  An  attempt, 
he  said,  was  being  made  to  draw  an  artificial  line  between  Law  Lords  and  other 
Peers"  and  he  cited  the  political  activities  of  the  Lord  Chancellor. 

The  Lord  Chancellor  replied  that  "since  Law  Lords  were  introduced  into  the 
House  50  years  ago,  a  tradition  had  grown  up  that  they  should  not  take  part  in 
purely  party  debates.  Only  one  recent  instance  to  the  contrary  had  occurred. 
He  argued  that  the  office  of  Lord  Chancellor  was  exceptional — it  was  an  anomaly 
tolerated  for  centuries  by  constitutional  law.  If  Lord  Carson's  view  prevailed, 
the  result  would  be  that  when  a  Prime  Minister  had  to  make  an  appointment  as 
Judge  he  would  have  to  consider  the  question  of  a  man's  political  opinions,  and 
not  his  ability."  The  London  Times  (weekly  edition),  April  7,  1922. 

xlf  clergymen  of  the  Protestant  Episcopal  Church  in  Ireland  are  now  dis- 
qualified (a  point  which  seems  to  be  in  doubt)  their  disqualification  also  ought 
to  be  removed. 


SECOND  CHAMBER  CONFERENCE       591 

Second  Chamber  ought  to  be  allowed  to  stand  for  the  House 
of  Commons,  as  Peers  of  Ireland  have  been  since  the  Union  in 
1800.  The  case  of  Lord  Palmerston  is  a  familiar  one. 

There  seemed  to  be  no  reason  why  the  ancient  rule  which 
requires  a  Member  of  the  House  of  Commons  desiring  to  resign 
his  seat  to  do  so  by  the  fiction  of  accepting  such  an  obsolete 
office  as  that  of  the  stewardship  of  the  Chiltern  Hundreds,  or 
the  stewardship  of  the  Manor  of  Northstead,  should  be  ap- 
plied to  the  new  Second  Chamber;  and  it  is  accordingly  sug- 
gested that  its  Members  may  retire  by  the  simple  method  of 
addressing  a  formal  letter  of  resignation  to  the  President  or 
Speaker  of  that  Chamber. 

41.  Three  other  points  deserve  careful  consideration.    They 
are  these: 

(a)  Whether  Ministers  of  the  Crown  ought  to  be  allowed  to 
speak  in  both  Houses  of  Parliament,  of  course  with  no 
right  of  voting  except  in  the  House  to  which  they  be- 
long. 

(6)  Whether  salaries  similar  to  those  now  paid  to  the  Mem- 
bers of  the  House  of  Commons  should  be  paid  to 
Members  of  the  Second  Chamber  also. 

(c)  What  provisions  should  be  made  for  the  period  of  transi- 
tion from  the  existing  House  of  Lords  to  the  new 
Second  Chamber  so  that  the  regular  working  of  our 
constitutional  machinery  should  go  on  through  this 
period. 

These  points,  since  they  raise  issues  which  the  Conference 
did  not  seem  called  upon,  or  perhaps  even  empowered  by  the 
Terms  of  Reference,  to  deal  with,  are  submitted  to  the  judg- 
ment of  His  Majesty's  Government,  and  it  was  left  to  them  to 
deal  with  various  minor  non-controversial  matters  relating  to 
the  requirements  necessary  for  carrying  out  in  detail  the 
Scheme  whose  main  lines  have  been  laid  down  in  Part  II  of 
this  Report.  Among  these  would  be  the  dates  to  be  fixed  for 
the  election  by  the  several  groups  of  the  Members  of  the  House 
of  Commons  and  the  details  to  be  settled  respecting  the  filling 
up  of  vacancies,  both  casual  and  those  which  will  arise  at  the 
expiring  of  the  three  quadrennial  periods.  In  order  not  to 
encumber  the  scheme  by  these  minor  matters  they  are  sub- 
mitted to  the  judgment  of  the  Government  and  of  Parliament. 
Some  of  them  might,  perhaps,  be  usefully  dealt  with  by  an 
order  in  Council. 

42.  Upon  one  interesting  question  which  was  discussed — 
namely  that  of  the  possibility  of  turning  the  Second  Chamber 
to  good  account  for  the  purpose  of  including  in  it  persons  who 
might  be  qualified  both  to  express  the  views  of  the  Self-Gov- 


592  APPENDIX  V 

erning  Dominions  and  other  parts  of  the  British  Overseas 
possessions,  and  to  join  with  full  knowledge  in  discussing  ques- 
tions affecting  them,  it  was  held  by  the  Conference,  after  the 
matter  had  been  debated  with  a  full  recognition  of  its  impor- 
tance, that  they  were  precluded  by  their  Terms  of  Reference 
from  making  recommendations  which,  if  adopted,  might  affect 
the  relations  of  the  Parliament  of  this  country  with  outlying 
parts  of  the  Empire.1  But  the  hope  was  expressed  in  the 
course  of  the  discussion  that  this  matter  would  receive  the  care- 
ful consideration  of  His  Majesty's  Government. 

The  Conference  then  passed  on  to  another  of  the  three 
topics  set  out  in  the  Terms  of  Reference,  viz.,  the  legislative 
functions  which  the  Second  Chamber  ought  to  exercise. 

LEGISLATIVE  FUNCTIONS  OF  THE  SECOND  CHAMBER 

43.  Only  in  one  respect  does  this  subject  present  any  serious 
difficulty.     It  has  always  been  understood  in  this  country — 
and  this  is  the  practice  in  nearly  every  country  where  a  Second 
Chamber  exists2 — that  the  Second  Chamber  should  be  entitled 
to  full  power  in  the  sphere  of  such  legislation  as  is  not  of  a 
financial  character.     It  may  revise  and  amend,  and  in  some 
cases  refuse  to  proceed  with,  a  Bill  brought  to  it  from  the  other 
House.     It  may  initiate  ordinary  Bills  both  Public  and  Private. 
It  may  discuss  all  questions  of  general  domestic  and  imperial 
policy.     In  financial  matters  alone  is  its  range  of  action  limited 
by  the  long  established  superior  rights  of  the  popular  House. 
Accordingly,  it  was  with  questions  of  finance  and  with  these 
only  that  the  Conference  found  it  had  to  deal. 

44.  The  Conference  was  agreed  in  declining  to  attempt  to 
recast  as  a  whole  the  old  rules  which  have  determined  the 
privileges  of  the  House  of  Commons  with  regard  to  Finance. 
These  are  now  a  sort  of  labyrinth  of  historical,  constitutional, 
and  legal  controversies.     Thus  it  was  resolved  to  deal  with 
one  branch  only  of  the  subject — the  distinction  to  be  drawn 
between  Bills  which  are  purely  financial  in  effect  as  well  as  in 
form  and  those  which  though  containing  some  financial  pro- 
visions, are  also  calculated  to  attain  non-financial  objects,  the 
method  of  discriminating  between  these  two  classes  of  bills, 


XA  similar  remark  applies  to  a  suggestion  made  by  one  of  our  members  that, 
were  a  federation  of  the  United  Kingdom  to  be  effected,  it  might  by  a  transfer 
of  legislative  powers  to  subordinate  parliaments  so  reduce  the  likelihood  of 
disagreements  between  the  two  Houses  as  to  make  any  large  change  in  the 
composition  of  the  Second  Chamber  unnecessary.  This  also  was  deemed  to  lie 
outside  of  the  Terms  of  Reference. 

1  This  is  by  no  means  true  as  to  the  Second  Chambers  established  by  many  of 
the  new  constitutions  of  Europe.  See  above,  Chapter  III. 


SECOND  CHAMBER  CONFERENCE        593 

and  the  consequences  which  ought  to  follow  from  such  dis- 
crimination. 

45.  It  is  recognized  on  all  hands  that  Bills  of  a  purely  financial 
nature  belong  to  the  House  of  Commons  alone  and  ought  not  to 
be  rejected  or  amended  by  the  Second  Chamber. 

But  what  is  a  purely  financial  Bill? 

A  Bill  brought  into  the  House  of  Commons  whether  to  raise 
revenue  or  to  appropriate  revenue  for  particular  public  purposes 
may,  while  purporting  to  be  concerned  only  with  the  raising  and 
spending  of  money,  have  effects — industrial,  commercial,  social, 
or  political  effects — more  important  and  far  reaching  than  would 
be  its  direct  financial  effects.  Many  large  changes — indeed 
some  revolutionary  changes — might  be  carried  through  by  meas- 
ures purporting  to  be  financial.  The  Conference  thought  that, 
if  the  new  Second  Chamber,  elected  as  proposed,  is  to  be  of  real 
service,  its  views  ought  to  be  heard  regarding  such  changes.  It 
would  appear  to  be  required,  in  the  interests  of  the  people,  and 
that  not  merely  as  taxpayers,  but  as  citizens  also,  that  such 
measures  should  not  be  hastily  hurried  into  law  without  due 
consideration:  and  a  Second  Chamber  constituted  as  proposed 
would  seem  fitted  to  furnish  a  safeguard  for  this  purpose.  The 
jealousies  and  antagonisms  which  have  in  time  past  attached  to 
the  action  of  a  non-representative  House  confined  to  the  mem- 
bers of  one,  and  that,  for  the  most  part,  a  wealthy  class,  need 
not  be  expected  to  apply  to  the  action,  strictly  limited  as  the 
Conference  think  it  should  be,  of  a  Second  Chamber  so  much 
changed  in  its  composition  and  so  popular  in  its  character  as  it 
will  be  under  the  Scheme  hereinbefore  described.  If  this  be 
admitted,  the  question  is  raised :  How  are  purely  financial  Bills 
to  be  discriminated  from  others  which,  while  to  some  extent  and 
for  some  purposes  financial,  are  also  much  more  important  in 
their  non-financial  effects  than  in  those  that  relate  merely  and 
directly  to  the  raising  and  spending  of  money? 

46.  The  obvious  method  might  appear  to  be  to  find  a  clear 
and  precise  definition  which  could  be  inserted  in  a  statute  for 
distinguishing  these  two  kinds  of  Bills.    The  Conference  spent 
many  hours  in  trying  to  find  such  a  definition,  but  without  suc- 
cess.    Some  proved  to  be  too  wide,  others  too  narrow.    The 
complexity  of  the  problem,  and  the  variety  of  the  cases  which 
had  to  be  provided  for,  were  baffling;  and  very  high  authoirites 
who  were  consulted  declared  that  this  had  been  their  experience 
also.     But  an  examination  of  the  cases  of  doubt  which  had 
arisen  in  this  country  and  elsewhere  showed  that  most,  perhaps 
nearly  all  of  them,  could  have  been  disposed  of  after  a  not  very 
protracted  discussion  round  a  table  by  a  dozen  practical,  fair- 
minded  men;  and  the  Conference  was  thus  led  to  believe  that 


594  APPENDIX  V 

the  best  method  of  treating  these  doubtful  and  disputable  Bills 
would  be  to  refer  them  to  a  small,  carefully  selected  Joint  Stand- 
ing Committee  of  both  Houses  of  Parliament,  making  its  deci- 
sion final.  Such  an  arrangement  for  deciding  these  delicate 
questions  seemed  preferable  to  that  contained  in  the  Parliament 
Act,  which  does  not  cover  all  the  cases  likely  to  arise,  and  which 
places  on  the  Speaker  responsibilities  with  which  it  is  not  desir- 
able to  load  an  office  whose  perfect  impartiality  everyone  desires 
to  preserve.  The  Conference  accordingly  recommends  that 
such  a  Finance  Committee,  which  ought  not  to  exceed  in  number 
seven  members  from  each  House,  be  set  up  at  the  beginning  of 
each  Parliament,  and  that  either  House  should  be  entitled  to 
refer  to  it  any  financial  Bill  containing  provisions  which  raise 
serious  issues  that  may  be  thought  to  be  not  solely  of  a  financial 
nature.  It  would  be  the  duty  of  such  a  Committee  to  consider 
not  only  the  professed  objects,  but  also  the  underlying  purpose 
and  the  probable  effects  of  such  a  Bill,  in  order  to  determine  its 
character  and  to  report  which  (if  any)  of  its  clauses  are,  as  being 
strictly  financial,  fit  to  be  dealt  with  by  the  House  of  Commons 
alone,  and  which  (if  any)  may  properly  be  subjected  to  examina- 
tion and  amendment  by  the  Second  Chamber  in  respect  of  the 
economic  or  social  results  to  be  expected  from  them,  these  being 
matters  of  general  national  policy.  Should  the  Committee  re- 
port in  the  latter  sense,  such  provisions  as  were  declared  to  be 
non-financial  would  be  open  to  rejection  and  amendment  by  the 
Second  Chamber,  subject  always  to  the  ancient  rule  that  no 
amendments  should  be  made  by  the  Second  Chamber  which 
could  increase  any  charge  upon  the  people.  If  amendments 
were  made  in  bills  declared  to  be  non-financial,  and  these  were 
not  accepted  by  the  House  of  Commons,  the  differences  between 
the  two  Houses  would  fall  to  be  adjusted  in  the  manner  (to 
which  I  now  pass)  provided  for  the  case  of  an  ordinary  non- 
financial  Bill. 

ADJUSTMENT  OF  DIFFERENCES  BETWEEN  THE  Two  HOUSES 

47.  The  Conference  then  reached  the  last  of  the  three  sub- 
jects mentioned  in  our  Terms  of  Reference,  viz.,  the  Adjustment 
of  Differences  between  the  two  Houses.  This  has  long  been  re- 
garded as  one  of  the  most  difficult  of  all  the  questions  affecting 
the  position  and  powers  of  a  Second  Chamber.  It  divides  itself 
into  two  branches: 

(a)  The  methods  of  conciliation  and  compromise  by  which 
differences  may  be  settled  without  any  ultimate  trial 
of  strength. 

(6)  Some  plan  for  final  settlement  when  no  compromise  has 
been  found  attainable. 


48.  (a)  Conferences  between  the  two  houses  to  settle  their 
differences  have  been  an  old  part  of  Parliamentary  machinery. 
They  have,  however,  been  of  comparatively  slight  value,  and  little 
used  in  recent  years,  because  the  rules  which  governed  them  were 
stiff  and  cumbrous.     It  is  therefore  proposed  to  apply  a  simpler 
and  more  elastic  method,  which  is  really  new,  though  it  may 
fitly  be  called  by  the  old  name  of  Free  Conference.    The  sug- 
gestion is  that  a  small  number  of  the  most  experienced,  most 
judicious  and  most  trusted  members  of  each  House  be  chosen 
at  the  beginning  of  each  Parliament,  due  representation  being 
given  to  all  the  parties  that  may  exist  in  each  House,  to  form  a 
Standing   Conference   Committee,   and   that  another  smaller 
number  be    added   by   each   House   of   persons    who,   while 
possessing  the  same  merits  as  belong  to  the  permanent  element, 
should  also  possess  in  addition  a  special  knowledge  of  the  par- 
ticular matter  to  be  dealt  with  in  the  particular  controversy. 
The  permanent  number  might,  it  was  thought,  be  twenty  from 
each  House,  in  order  that  the  body  should  not  be  too  large  for 
easy  and  informal  discussion  and  should  be  not  liable  to  be  moved 
by  that  warmth  of  feeling  which  is  apt  to  increase  with  the  num- 
bers of  any  assembly.     The  number  of  additional  members  to 
be  added  pro  re  natd  in  respect  of  special  knowledge  would  be 
determined  by  the  magnitude  of  the  issue  involved,  but  ought 
not  (it  was  deemed)  to  exceed  ten  from  each  House,  so  that  the 
total  number  of  the  body  should  not  in  any  case  exceed  sixty. 

49.  When  the  Free  Conference  Committee  thus  constituted 
had  been  set  up,  any  amendments  made  by  either  House  to  a 
Bill  passed  by  the  other,  would,  if  they  were  not  accepted  by 
that  other  House,  stand  referred,  at  the  request  of  either  House, 
to  the  Free  Conference.     The  Free  Conference  would  then  ad- 
dress itself  to  the  solution  of  the  controversy  by  friendly  methods 
exploring  the  various  points  involved  and  seeking  to  find  a  way 
out  of  the  difficulty  either  by  compromise  or  by  discovering  some 
new  plan  which  might  prove  more  acceptable  to  both  Houses 
than  that  contained  in  the  Bill  passed  by  one  House,  or  in  the 
amendments  passed  by  the  other.     If  and  when  agreement  is 
reached  by  the  Free  Conference  its  terms  would  be  reported  to 
both  Houses.     Each  House  would  then  consider  them  and  ac- 
cept them  or  reject  them.    If  they  were  accepted  by  both  Houses 
en  bloc  the  controversy  would  be  at  an  end,  and  the  Bill  would 
be  in  a  position  to  receive  the  assent  of  the  Crown.     If,  however, 
the  Bill  (as  reported  by  the  Free  Conference)  was  accepted  by 
one  House  but  rejected  by  the  other,  some  further  method  of 
effecting  an  adjustment  would  be  required.    To  this  point  I 
return  below. 

50.  It  may  be  asked  whether  the  Free  Conference  should  sit 


596  APPENDIX  V 

in  private  or  in  public.  The  view  taken  was  that  its  proceedings 
should  be  conducted  in  secret,  for  only  thus  can  perfect  freedom 
of  discussion  be  secured.  Its  members  ought  to  be  at  liberty  to 
make  suggestions  for  compromise  without  prejudice  to  their 
own  subsequent  action  in  further  sittings  or  when  the  matter 
comes  before  each  House  as  a  whole.  A  record  of  the  pro- 
ceedings would  be  kept,  and  would  state,  unless  the  Free  Confer- 
ence should  otherwise  determine,  the  numbers  voting  in  each 
division,  but  would  not  give  the  names  of  Members  voting. 
Whether  this  record  should  be  published  along  with  the  Report 
might  be  left  to  the  Free  Conference  to  determine. 

51.  Another  question  is,  Should  it  be  open  to  either  House 
to  require  the  reference  to  the  Joint  Standing  Committee  of  a 
Bill  rejected  in  toto  by  the  other  House? 

We  hope  and  believe  that  when  the  system  of  Free  Conferences 
has  been  established,  rejections  of  a  Bill  will  rarely  occur.  It 
would  be  generally  felt  more  desirable  that  objections  taken  to  a 
Bill  should  be  set  forth  in  amendments  made  to  it.  But  if  a  Bill 
were  rejected,  and  either  House  wished  the  issues  raised  to  be 
referred  to  a  Free  Conference,  it  was  thought  that  this  method  of 
endeavouring  to  secure  agreement  need  not  be  ruled  out. 

52.  (6)  The  question  remains  to  be  considered  whether,  in 
the  event  of  a  compromise  having  been  found  unattainable  by 
means  of  a  Free  Conference,  some  other,  and,  if  so,  what  plan 
should  be  resorted  to  for  the  purpose  of  obtaining  a  final  settle- 
ment of  differences  between  the  two  Houses. 

Suppose,  for  instance,  that  the  proposals  for  adjustment  re- 
ported by  the  Free  Conference  have  been  accepted  by  one  House 
and  rejected  by  the  other,  what  further  steps  would  be  required 
to  solve  the  deadlock? 

Three  such  methods  were  put  forward  for  consideration  and 
were  very  carefully  examined. 

53.  The  first  was  that  the  House  which  accepted  the  Bill  as 
reported  by  the  Free  Conference  should  have  the  right  of  refer- 
ring it  to  a  Joint  Sitting  of  both  Houses.     The  Bill  would  then 
be  discussed  by  the  members  of  both  Houses  united  together  (as 
they  were  before  the  Lords  and  Commons  began  to  sit  apart) 
in  the  Great  Council  of  the  Nation  in  Parliament  assembled,  and, 
if  not  there  settled  by  agreement,  its  fate  would  be  decided  by  a 
vote  of  the  whole  united  body.     This  plan  had  obtained  influen- 
tial support  some  years  ago  when  the  subject  was  considered  by  a 
Committee  of  the  House  of  Lords.    But  though  some  advantages 
it   presented   were   recognized,    obvious   objections   presented 
themselves  in  respect  of  the  great  size  of  the  united  body,  the 
various  difficulties  attending  its  procedure,  and  the  possibility 
that  its  presence  in  the  background  might  make  agreement 


SECOND  CHAMBER  CONFERENCE        597 

in  a  Free  Conference  less  probable.    Thus  it  finally  failed  to 
command  general  assent. 

54.  A  second  plan  was  that  of  referring  the  matters  in  contro- 
versy between  the  Houses  to  the  country  by  means  of  a  Referen- 
dum or  popular  vote  of  all  the  registered  electors.    This  proposal 
received  considerable  support,  and  some  who  favoured  it  remain 
of  opinion  that  it  is  the  best  method  of  solving  deadlocks.     They 
desire  that  when  the  two  Houses  have  failed  to  agree  to  a  Bill  as 
reported  from  the  Free  Conference  it  should  be  open  to  the 
House  of  Commons  to  submit  the  Bill  as  approved  by  the  Free 
Conference  to  a  vote  of  the  people.    The  vote  might  take  place 
at  a  date  to  be  fixed  by  Order  in  Council  not  less  than  sixty  days 
after  the  House  of  Commons  had  passed  the  Resolution  asking 
for  a  Referendum,  or,  if  it  were  judged  convenient  by  the  Gov- 
ernment, the  Order  in  Council  might  fix  the  next  General  Elec- 
tion as  the  time  for  the  vote.     If  the  result  of  the  vote  were 
adverse  to  the  Bill  the  Bill  would  be  dead.     If  the  result  of  the 
vote  were  favourable,  the  House  of  Commons  would  have  author- 
ity to  submit  the  Bill  to  Royal  Assent  without  the  concurrence 
of  the  Second  Chamber.     By  this  method,  it  was  thought,  the 
essential  principle  of  self-government,  that  the  people  must  in  the 
last  resort  themselves  decide  what  legislation  they  desire,  would 
be  applied  without  invading  the  representative  character  of  the 
House  of  Commons  or  diminishing  its  proper  authority  as  a 
representative  assembly.     It  was  further  urged,  in  support  of 
this  plan,  that  the  knowledge  that  the  possibility  of  a  reference 
to  the  people  might  ultimately  be  resorted  to  would  greatly 
stimulate  and  strengthen  conciliatory  influences  within  the  Free 
Conference  and  commonly  lead  to  the  adjustment  of  differences 
by  mutual  concession  between  the  contending  parties. 

55.  The  majority  of  the  Conference,  however,  did  not  ap- 
prove this  plan  on  the  ground  (among  others)  that  the  use  of  the 
Referendum  once  introduced  could  not  be  confined  to  the  cases 
for  which  it  was  in  this  instance  proposed,  that  it  might  tend  to 
lower  the  authority  and  dignity  of  Parliament,  and  that  it  was 
unsuited  to  the  conditions  of  a  large  country,  and  especially  of 
the  United  Kingdom,  for  different  parts  of  which  different  legis- 
lation is  sometimes  required. 

56.  When  it  appeared  that  the  judgment  of  the  Conference 
as  a  whole  did  not  favour  either  of  the  two  plans  above  stated,  it 
became  necessary  to  search  for  some  other  method  of  adjust- 
ment.    This  was  at  last  discovered  by  returning  to  and  carrying 
further  that  mode  of  proceeding  by  Free  Conference  which  has 
been  already  outlined. 

It  has  been  already  observed  that  if  a  Bill  reported  from  a 
Free  Conference  had  been  accepted  by  one  House  but  rejected 


598  APPENDIX  V 

by  the  other  some  further  step  would  be  required.  This  step 
would  be  to  send  the  Bill  back  to  the  Free  Conference,  which 
would  take  up  the  matter  again  in  the  Session  next  following  that 
in  which  the  Bill  originated.  If  the  Free  Conference  should 
then,  after  further  consideration,  again  report  the  Bill  to  the 
Houses  in  the  same  form  in  which  it  had  been  previously  re- 
ported, the  Houses  would  again  consider  the  Bill. 

If  they  both  agreed  to  it,  it  would  pass;  if  they  both  dis- 
agreed to  it,  or  if  the  House  of  Commons  alone  disagreed,  it 
would  lapse.  If,  however,  the  House  of  Commons  alone  agreed 
to  the  Bill,  and  it  had  been  reported  by  the  Free  Conference  by 
a  majority  of  not  less  than  three  of  the  members  present  and 
voting,  it  would  be  submitted  for  the  Royal  Assent. 

Should  the  Free  Conference,  however,  fail  to  agree  to  report 
the  Bill  again  in  the  same  form,  or  if  the  majority  by  which  it 
agreed  to  report  it  should  be  less  than  three,  the  Bill  would  lapse, 
unless  of  course  it  was  accepted  by  both  Houses  as  reported. 

57.  It  will  be  clear  that  the  effect  of  this  procedure  would  be 
on  the  one  hand  to  secure  that  full  opportunity  should  be  given 
for  reconciling  different  views  by  amendments  and  methods  of 
compromise  generally,  and  on  the  other  hand  to  provide  that 
nothing  less  than  a  majority  of  three  in  the  Free  Conference 
(which  will  itself  consist  of  selected  members  of  both  Houses) — 
a  majority  which  would  be  substantial  having  regard  to  the 
numbers  of  the  Conference — would  suffice  to  determine  the 
points  in  issue.     This  would,  it  is  submitted,  safeguard  the  rights 
of  both  Houses,  for  the  Second  Chamber  would  not  be  overruled, 
unless  a  considerable  proportion  of  those  who  represented  it  in 
the  Free  Conference  had  voted  in  favour  of  the  Bill,  while  the 
ultimate  control  of  the  more  popular  House  would  be  respected. 

58.  It  is  believed  that  by  this  method  of  Free  Conferences, 
applied  in  a  calmer  atmosphere  than  could  be  expected  in  either 
House  as  a  whole,  the  arguments  on  which  each  party  relied, 
would  be  better  appreciated.     Many  controversies  might  thus 
be  amicably  settled,  and  even  where  they  were  not  wholly  set- 
tled, the  matters  hi  dispute  would  probably  be  reduced  in  num- 
ber, so  that  when  the  plan  proposed  for  decision  in  the  last  re- 
sort had  to  be  applied,  the  issues  to  be  submitted  to  such  final 
arbitrament  would  have  become  fewer  and  more  clearly  defined. 

59.  In  order  to  prevent  any  possibility  of  confusion  between 
the  three  different  Joint  Committees  of  both  Houses  recom- 
mended for  different  purposes  by  the  Conference,  i.  e.:   1.  The 
Joint  Committee  for  the  election  of  a  portion  of  the  Second 
Chamber,    2.  The  Joint  Committee  for  deciding  questions  with 
regard  to  Financial  Bills,     3.  The  Joint  Committee   (or  Free 
Conference)   for  conferring  about  differences  of  opinion  with 


SECOND  CHAMBER  CONFERENCE       599 

regard  to  questions  of  general  legislation,  the  following  Table, 
in  which  their  functions,  method  of  composition,  etc.,  are  de- 
tailed, is  given. 

It  may  be  added  in  support  of  this  extended  application  of  the 
machinery  of  Joint  Committees  that  the  Conference  hoped  that 
by  such  means  there  might  be  attained  a  better  understanding 
and  closer  cooperation  between  the  two  Houses  of  Parliament, 
than  it  has  in  the  past  been  found  possible  to  secure. 


TABLE  OF  JOINT  STANDING  COMMITTEES  RECOMMENDED  TO  BE 
SET  UP,  SHOWING  THEIR  COMPOSITIONS,  FUNCTIONS,  ETC. 


TITLE 

FUNCTIONS 

NUMBER 

METHOD    OP   COMPOSITION 

DURATION 

Electing    Joint 
Committee    or 

To  elect  one-quarter 
of  Second  Cham- 

10 

5  to  be  chosen  by  Speaker, 
5  to  be  chosen  by  Com- 

One Parlia- 
liament 

Commission 

ber 

mittee   of   Selection   of 

House    of    Lords    and 

afterwards    of    Second 

Chamber 

Financial  Joint 

To    decide    whether 

14  or 

7  appointed  by  Committee 

One  Parlia- 

Committee 

Bills,     or     provi- 

16 

of    Selection    of    each 

ment 

sions,   referred   to 

House,    with   power   to 

them  are  Financial 

eottpt    Chairman    from 

outside 

Free  Conference 

To  adjust  differences 
between   the   two 

60 

A.  20  appointed  by  Com- 
mittee of  Selection  of 

A.    On- 
Parlia- 

Houses    with    re- 

each House 

ment 

gard   to  Bills   (or 

B.     10    additional    mem- 

B.   For 

provisions  in  Bills) 
other  than  Finan- 

bers,   similarly    ap- 
pointed, pro  re  natd,  by 

proceed- 
ings  in 

cial 

each  House 

Confer- 

ence on  a 

particu- 
tar  Bill 

60.  We  are  aware  that  not  a  few  criticisms  may  be  made  upon 
the  scheme  here  presented.  Some  of  these  will,  it  is  to  be  hoped, 
be  dropped,  or  reduced  in  force,  when  the  explanations  given 
have  been  duly  considered  and  when  each  part  of  the  scheme  is 
regarded  hi  its  relation  to  the  whole,  and  apart  from  any  bias 
which  may  have  arisen  from  former  controversies.  If  other 
objections  still  remain,  the  best  answer  to  them  will  be  found  in 
the  fact  that  among  the  Second  Chambers  which  exist  in  other 
countries  there  is  not  one  whose  composition  cannot  be  attacked 
on  grounds  at  least  as  grave  as  any  that  can  be  brought  against 
this  scheme,  yet  there  is  none  among  these  Chambers  which 
does  not,  in  the  opinion  of  its  own  people,  contribute  to  the  good 
government  and  tranquillity  of  the  country  where  it  exists. 


600  APPENDIX  V 

Perfection  is  not  to  be  expected  in  any  Chamber  or  in  any  frame 
of  government.  The  true  test  is  whether  it  is  so  constructed  as 
to  offer  a  reasonable  prospect  of  so  discharging  the  functions  for 
which  it  is  designed  as  to  contribute  to  the  excellence  of  legis- 
lation and  welfare  of  the  whole  body  politic. 

61.  Those  who  criticize  will,  we  trust,  appreciate  the  nature 
and  weigh  the  difficulties  of  the  task  imposed  upon  us.     We 
had  to  reconcile  the  sentiment  of  attachment  to  a  venerable 
institution  with  the  needs  of  new  social  conditions  and  the  de- 
mands of  new  phases  of  thought.     There  were  two  principles  on 
which  a  Second  Chamber  might  be  constructed.     One  was  that 
of  filling  a  House  with  the  largest  available  number  of  capable 
and  experienced  men  whose  presence  would  win  for  it  that  kind 
of  authority  which  comes  from  personal  eminence.     The  other 
principle  was  that  of  creating  a  Chamber  which  should  be  most 
quickly  responsive  and  most  fully  responsible  to  public  opinion, 
drawing  its  strength  from  the  fact  that  it  had  been  popularly 
elected.     It  was  impossible  to  give  full  scope  and  application  to 
either  of  these  principles  and  to  secure  in  ample  measure  the 
benefit  of  either  source  of  strength  without  losing  some  of  the 
merits  to  be  expected  from  the  other.     We  had,  therefore,  to 
find  means  whereby  to  combine  as  many  as  possible  of  the  ad- 
vantages with  as  few  as  possible  of  the  defects  of  either  course, 
and  we  had  to  remember  that  a  plan  which  philosophers  might 
approve  would  not  necessarily  find  like  favour  with  the  bodies 
by  whose  will  it  would  have  to  pass  into  law.     So,  too,  when  the 
powers  of  the  Second  Chamber  had  to  be  defined,  similar  per- 
plexities arose.     It  was  generally  agreed  that  a  Second  Chamber 
would  be  of  little  use  unless  it  were  strong  enough  to  differ  from 
the  House  of  Commons  when  a  proper  occasion  arose — a  proper 
occasion  being  one  in  which  there  was  reason  to  believe  that 
some  decision  of  the  Commons  did  not  express  the  full  and  de- 
liberate will  of  the  people.     But  it  was  also  agreed  that  the 
Second  Chamber  ought  not  to  be  so  strongly  entrenched  as  to 
dispose  it  to  engage  in  frequent  contests  with  the  House  of 
Commons,  so  as  to  embarrass  the  Executive  and  clog  the  wheels 
of  legislation.     It  thus  became  necessary  to   steer  a   middle 
course  between  these  extremes,  assigning  to  the  Second  Chamber 
such  powers  only  as  the  interests  of  the  nation  seem  to  require 
and  finding  expedients  by  which  differences  between  the  Houses 
might  be  adjusted  with  the  minimum  of  friction  and  delay, 
avoiding  conflicts  by  methods  of  conciliation. 

62.  On  a  subject  which  presents  so  many  aspects  as  that  we 
have  had  to  deal  with  there  must  needs  be  differences  of  opinion. 
All  political  parties  were  represented  in  the  Conference.     But 
such  divergences  of  view  as  from  time  to  time  arose  did  not  often 


SECOND  CHAMBER  CONFERENCE       601 

spring  from  or  correspond  to  divergences  of  political  opinion. 
They  were  due  rather  to  the  greater  or  less  weight  which  our 
members  respectively  attached  to  principles  they  all  admitted, 
and  also  to  the  diverse  conjectures  that  were  formed  about  the 
probable  working  out  in  practice  of  the  various  plans  presented. 
In  such  matters  a  diversity  of  views  is  inevitable  among  men  of 
independent  minds.  It  has  not  prevented  the  great  majority 
of  the  Conference  from  recommending  the  scheme  here  drawn 
out,  though  some  members  dissent,  as  mentioned  in  paragraph 
22,  from  the  plan  of  election  by  Members  of  the  House  of  Com- 
mons acting  in  geographical  groups,  and  other  members  have 
respectively  preferred  various  other  methods  of  election  which 
have  not  received  the  support  of  the  majority  of  the  Conference, 
while  one  or  two  members  thought  that  the  powers  of  the  Second 
Chamber  should  be  more  restricted  than  the  majority  deemed 
requisite. 

63.  I  may  perhaps  be  permitted  to  add  a  word  as  Chairman 
of  the  Conference.  One  of  the  things  that  most  struck  me  in 
presiding  over  the  long  and  animated  discussions  of  the  Con- 
ference, was  that  every  member  was  not  only  scrupulously  care- 
ful to  avoid  recrimination  over  past  controversies,  but  also 
recognized,  above  and  beyond  all  differences  of  opinion,  the  fair- 
ness and  goodwill  of  his  colleagues,  and  gave  to  each  and  all  of 
them  the  credit  of  honestly  and  sincerely  seeking  what  was  best 
for  the  country  without  thought  of  the  special  interest  of  his  own 
class  or  party.  Whatever  judgment  may  be  passed  on  our 
labours  we  hope  that  the  Conference  will  be  felt  to  have  ad- 
dressed itself  with  a  single  and  an  earnest  mind  to  the  duty  that 
was  assigned  to  it — the  duty  of  trying  to  reconstruct  upon  lines 
fitted  to  the  conditions  of  our  time  an  important  part  of  that 
ancient  and  famous  Constitution  which  many  nations  have 
taken  as  a  model  and  which  has  for  more  than  seven  centuries 
safeguarded  the  liberties  and  advanced  the  greatness  of  the 
British  people. 

Commending  the  conclusions  embodied  in  this  Report  to  the 
consideration  of  yourself  and  your  colleagues, 

I  have  the  honour  to  be,  my  dear  Prime  Minister, 

Very  faithfully  yours, 

BRYCE. 

April,  1918. 


INDEX 

To  Introductory  Chapters  and  Historical  Notes 


Administration,  control,  26,  34-37;  in 
France,  30;  democratization,  36. 

Albania,  has  not  yet  adopted  consti- 
tution, vi. 

Albert,  Prince  Consort,  influence  over 
foreign  affairs,  140-141. 

Amendment  of  constitutions,  in  Ger- 
many, 71;  in  United  States,  71,  154; 
in  new  states,  155. 

Andrassy,  Count  Julius,  253. 

Angell,  Norman,  quoted,  160,  162. 

Arbeitsgemeinachajten,  in  Germany, 
125,  130. 

Aristotle,  quoted,  57,  163. 

Armistice,  of  November  11,  1918, 
170. 

Ashley,  William,  cited,  384. 

Asquith,  Herbert,  29;  quoted,  43. 

Atherley-Jones,  Judge,  quoted,  20. 

Ausgleich,  between  Austria  and  Hun- 
gary, 241-246,  248. 

Austria-Hungary,  a  composite  system, 
3;  resistance  to  constitutionalism, 
9;  little  republican  sentiment  in,  15; 
monarchs  and  princes  abdicate,  15; 
parts  of,  merged  into  Jugoslavia, 
77,  345;  control  over  foreign  affairs, 
136;  origin  of  Dual  System,  241-244; 
Ausgleich,  244;  nature  of  Union, 
245-246;  Delegations,  244-245;  no 
responsible  ministry,  245;  results  of 
Dualism,  245-246;  economic  inter- 
dependence, 246;  effects  of  war, 
250;  offers  to  negotiate  peace,  251; 
disintegration,  252,  309;  status  of 
Jugoslavs  in,  343-345;  authority 
of,  comes  to  end  in  Jugoslavia,  345- 
346. 

Austrian  Empire,  executive  power  in 
34,  52;  part  of,  merged  into  Jugo- 
slavia, 77,  345;  representation  in, 
117;  defeat  of,  by  Prussia  in  1866, 
167,  243;  status  of,  prior  to  1867, 
241;  conflict  of,  races  in,  241,  247; 
Diploma  of  1860,  242;  Patent  of 
1861,  242;  Patent  of  1867,  243-244; 


part  of  Dual  Monarchy,  244; 
ratifies  Ausgleich,  244;  Hungarian 
influence  in,  246;  severance  from 
Hungary  in  1918,  246;  geography 
of,  246-247;  Roman  Catholic  re- 
ligion, 248;  dissentious  political 
history,  248;  constitution  of  1867, 
248;  amendments  of,  248-249; 
political  parties,  249;  problems  in 
victory  or  defeat,  250;  parliament 
of,  suspended  during  war,  250-251; 
effect  of  Russian  Revolution  in,  251; 
reassembly  of  parliament  in,  251; 
federalization  promised,  252,  308; 
government  of  Jugoslavs  in,  343; 
partition  of  Poland  to,  402. 

Austrian  Republic,  democratic  gov- 
ernment, 3;  federal  system,  39,  74- 
76;  agricultural  needs  of,  59;  relation 
to  Petite  Entente,  60-61;  union  with 
Germany  prevented,  74,  187-188, 
255;  number  of  states,  75;  position 
of  Lower  Austria,  75;  legislative  and 
administrative  centralization,  75- 
76;  proportional  representation,  84, 
114;  functional  representation,  135; 
judicial  supremacy,  158-159;  pro- 
visional government,  252-253;  ge- 
ography and  population,  253-254; 
Provisional  National  Assembly, 
254;  political  parties,  254-255;  de- 
centralization, 254;  constituent  as- 
sembly, 254-255;  constitution  of, 
256-306. 

Azerbaijan,  3,  4. 

Baden,  former  control  of  executive,  35; 

proportional  representation,  97-99; 

and  North  German  Confederation, 

169;  government  under  constitution 

of  1919,  238-240. 
Bagehot,  Walter,  cited,  12;  quoted, 

27,  28,  146. 

Baltic  States'  Treaty,  61. 
Banat,  77,  346. 
Barker,  Ernest,  quoted,  18,  19. 


603 


604 


INDEX 


Barriety,  cited,  93. 

Barthelemy,  Joseph,  cited,  150. 

Bavaria,  absorbs  Coburg,  67;  and 
North  German  Confederation,  169; 
government  under  constitution  of 
1919,  233-236. 

Beard,  C.  A.,  cited,  117. 

Belgium,  constitutional  monarchy,  7; 
despoilment  of,  55,  56;  proportional 
representation,  84,  92-95;  note  on 
constitutional  history,  499-501 ; 
constitution  of,  501-520. 

Belloc,  Hilaire,  quoted,  18. 

Benes,  E.,  quoted,  61;  leadership  of, 
309. 

Benoist,  Charles,  cited,  118. 

Bill  of  Rights,  in  new  constitutions, 
158-159;  in  Jugoslavia,  348. 

Bismarck,  Prince  Otto  von,  influence 
on  monarchy,  11-12;  attitude  to- 
ward cabinet  responsibility,  53; 
attitude  toward  popular  govern- 
ment, 167-168;  quoted,  167-168. 

Bjorkman,  Edwin,  cited,  429. 

Blociszewski,  cited,  403,  404. 

Blunt,  Wilfred  S.,  quoted,  144. 

Bluntschli,  J.  C.,  quoted,  7. 

Bohemia,  241,  247,  307-309. 

Boisjoslin,  J.  de,  cited,  402. 

Bolsheviki,  origin  of  term,  380;  coup 
d'etat,  382,  452-453;  see  also  Russia. 

Bolshevism,  compared  with  social- 
ization, 159;  and  the  German 
revolution,  171. 

Bosnia-Herzegovina,  343,  346. 

Bowman,  Isaiah,  cited,  65,  77,  247, 
346,  426. 

Brest-Litovsk,  Treaty  of,  251. 

British  Empire,  foreign  affairs,  2;  a 
composite  system,  3;  influence  of 
Crown,  12-14;  proposals  for  feder- 
ation, 78;  Parliament  of,  79;  see  also 
England  and  Great  Britain. 

Brockchausen,  C.,  quoted,  36. 

Brooks,  R.  C.,  cited,  152. 

Brunet,  Rene,  quoted,  35,  69,  100, 
101,  123-124;  cited,  62,  72,  98,  122, 
125,  129,  151,  175. 

Brusewitz,  Axel,  cited,  150. 

Bryce,  Lord,  quoted,  3,  4,  5,  17-21, 
48,  57,  58,  59,  85,  87,  136,  146,  156- 
158,  163;  report  of  for  Second 
Chamber  Conference,  44-54,  573- 
601. 

Bukowina,  241,  247. 

Bulgaria,  proportional  representation, 
84;  signs  armistice,  251;  part 
merged  into  Jugoslavia,  346. 


Bureau  of  Labor  Statistics,  U.  S., 
report  of,  on  German  Factory  Work- 
ers Councils,  126-128. 

Burgenland,  75,  254. 

Burian  von  Rajecz,  Count  Stephen, 
253,  308. 

Burke,  Edmund,  quoted,  163,  402. 

Burns,  C.  D.,  cited,  34. 

Cabinet,  powers  of,  during  war,  1; 
possible  reform  of  English,  23; 
recent  position  of  English,  28-29; 
tenure  in  France;  see  also  under 
names  of  countries. 

Calhoun,  John  C.,  quoted,  402. 

Canada,  influence  of  Crown  in,  12; 
political  influence  of  farmers  in,  20; 
second  chamber  in,  45  •  see  also 
Dominions. 

Carinthia,  77. 

Carlyle,  Thomas  G.,  quoted,  163. 

Carniola,  77. 

Clarendon,  Lord,  141. 

Clark,  R.  T.,  cited,  33;  quoted,  452- 
454. 

Clemenceau,  Georges,  29;  views  on 
Poland,  427. 

Coburg,  joins  Bavaria,  67,  234. 

Cole,  G.  D.  H.,  cited,  118. 

Commons,  House  of,  influence  of 
press  on  decline,  21-23;  possible 
reforms  in,  23;  problems  of,  23-24; 
recent  relations  of  Cabinet  to,  28- 
29;  relative  decline  in  prestige,  44; 
legislative  process,  49-50. 

Communism,  encouraged  by  Peace 
Treaties,  161-162. 

Communists,  in  Germany  during 
revolution,  171,  175. 

Conference  on  Devolution,  80-82. 

Conference  on  Second  Chamber,  see 
Second  Chamber  Conference. 

Congress  of  Oppressed  Nationalities, 
307. 

Congress  of  Vienna,  167. 

Constituent  assembly,  see  under 
names  of  countries. 

Constitutions,  making  of,  5;  in  17th 
and  18th  centuries,  5;  in  19th 
century,  8;  conception  of,  in  United 
States,  154;  conception  of,  in  Eu- 
rope, 155;  written  in  new  states, 
155;  written  compared  with  custo- 
mary, 156-158;  flexible  and  rigid 
compared,  156-158;  see  also  under 
names  of  countries. 

Cook,  Sir  Edward  T.,  cited,  139. 

Corfu,  Pact  of,  345. 


INDEX 


605 


Council  system  in  Germany,  119-132' 

Councils  of  Workmen's  Peasants'  and 
Soldiers'  Deputies,  in  Russia,  382. 

Courtney,  Lord,  quoted,  146. 

Cowley,  Lord,  141. 

Croatia,  241,  244,  343,  344,  346. 

Croatia-Slavonia,  77. 

Croats,  in  Jugoslavia,  78;  in  Austria, 
247,  343,  344,  345,  346. 

Currier,  C.  F.  A.,  cited,  523. 

Czechoslovakia,  democratic  govern- 
ment, 3,  15;  powers  of  President, 
32;  control  over  executive,  34-35; 
democratization  of  administration, 
36;  agricultural  need,  59;  member 
of  Petite  Entente,  60;  treaty  with 
Austria,  61;  no  federal  system,  76- 
77;  races,  76;  proportional  repre- 
sentation, 84,  108-109;  amendment 
of  constitution,  157;  judicial  su- 
premacy, 158-159;  recognition  of, 
251;  independence  of,  252-253; 
composition  of,  307;  a  medieval 
state  revived,  307;  provisional 
government,  308-309;  National  As- 
sembly, 310;  constitution  of,  310- 
342. 

Czechs,  in  Czechoslovakia,  76-77;  in 
Austria,  241,  242,  246,  247,  252; 
national  revival  of,  307-308. 

Dalmatia,  77,  343,  346. 

Danzig,  proportional  representation, 
84,  115;  functional  representation, 
135;  corridor,  426;  creation  of  Free 
City  of,  426-428;  under  League  of 
Nations,  427;  High  Commissioner, 
427;  relations  with  Poland,  428; 
constituent  assembly,  428-429;  con- 
stitution approved  by  League,  429, 
448-451;  constitution  of,  429-448. 

Dareste,  F.  R.  and  P.,  cited,  347,  499. 
523,  550,  551. 

Deck,  J.,  and  Wendt,  G.,  cited,  97. 

Dedek,  quoted,  157;  cited,  310. 

DelbrUck,  K.  von,  quoted,  122. 

Delcroix,  A.,  quoted,  95. 

Denmark,  nationality,  3;  proportional 
representation,  84,  90-92. 

Derby,  Lord,  142. 

d'Hondt  method,  in  proportional 
representation,  92,  94,  98,  112. 

Dicey,  A.  V.,  quoted,  52;  cited,  78. 

Dillon,  E.  J.,  cited,  381. 

Diplomacy,  see  Foreign  affairs. 

Disraeli,  Benjamin,  142,  143,  146. 

Dodd,  W.  F.,  cited,  499,  523,  551. 

Dominions,    foreign    affairs    of,    2; 


adapted  English  constitution,  8; 
influence  of  Crown,  12,  13;  political 
parties,  19;  oppose  imperial  feder- 
ation, 78. 

Dualism,  origin  in  Austria-Hungary, 
241-244;  nature  of,  245-246. 

Duchesne,  A.  E.,  cited,  4. 

Duggan,  S.  J.,  cited,  13. 

Duguit,  Leon,  cited,  118. 

Dunning,  W.  A.,  quoted,  8,  9,  10,  14. 

Dupriez,  Leon,  quoted,  95. 

East  Prussia,  63. 

Ebert,  Friedrich,  170,  174. 

Economic  •  Council  of  the  German 
Reich,  importance  of,  121;  possibil- 
ities of,  122;  establishment  of  pro- 
visional, 122,  128;  representation  in 
provisional,  129-130;  functions  of, 
130-132. 

Economic  Councils  in  Germany,  Dis- 
trict, 121,  132. 

Economic  problems,  influence  of.  on 
monarchy,  11;  emphasis  on,  in  new 
states,  24;  in  England,  24-25;  of 
small  states,  55,  59-60;  and  the 
Council  system  in  Germany,  119- 
132;  relation  of,  to  democracy,  163. 

Edward  VII,  influence  on  foreign 
policy,  14,  143-146. 

Egypt,  2,  57. 

Empires,  crumbling  of,  2;  segmen- 
tation of,  55;  see  also  under  names 
of  countries. 

England,  discontent  with  represen- 
tative government,  16;  political 
influence  of  trade-unions,  20;  de- 
cline of  House  of  Commons,  21-23; 
reform  of  House  of  Commons,  23; 
emphasis  on  economic  problems, 
24-25;  type  of  responsible  govern- 
ment, 27-29;  constitution  avoided 
by  most  new  states,  28;  government 
contrasted  with  that  of  France,  29- 
30;  reform  of  House  of  Lords,  40- 
54;  legislative  process,  48-52; 
Cabinet  domination,  54;  functions 
of  Parliament,  79;  Crown  Council 
for,  80-82;  class  representation  in 
Lords,  117;  control  of  foreign  affairs, 
136,  140-149;  wartime  socialism, 
160;  private  property  in,  160;  see 
also  British  Empire  and  Great 
Britain. 

English  constitution,  influence,  7-8; 
character,  7,  27;  peaceful  develop- 
ment, 8;  flexibility,  146. 

Erfurt  Prograaune,  171. 


606 


INDEX 


Esher,  Lord,  quoted.  21,  22,  44-45, 
144. 

Esmein,  A.,  cited,  151. 

Esthonia,  democratic  government, 
3,  15;  Swiss  type  of  executive,  28, 
32;  initiative  and  referendum,  32- 
33;  unicameral  legislature,  38; 
signs  Baltic  States'  Treaty,  61; 
proportional  representation,  84, 
115;  control  of  foreign  affairs,  151; 
geography,  452;  effect  of  Bolshevist 
coup  d'etat,  452-453;  invaded  by 
Germans,  453;  recognition  of,  453; 
constituent  assembly,  453;  treaty 
with  Russia,  453;  constitution  of, 
454-464. 

Executive,  powers  during  war,  1; 
separation  of,  6,  9;  in  new  consti- 
tutions, 26-37. 

Factory  Workers  Councils  in  Ger- 
many, 122-123;  organization,  123- 
124;  powers,  124-125;  and  trade- 
unions,  125-126;  election  of,  126; 
results,  126-128. 

Farrar,  J.  A.,  quoted,  141,  143. 

Federal  system,  permits  experiments, 
58;  in  Germany,  62,  213-214;  prob- 
lem in  new  Germany,  62,  216; 
definition,  68,  tests,  69;  applied  to 
Germany,  69-74;  tendency  toward 
centralization,  70;  in  Austria,  74- 
76,  256;  not  established  in  Czecho- 
slovakia, 76;  proposed  for  United 
Kingdom,  78-82;  agitation  for  in 
Austria  before  1867,  241-243; 
promised  in  Austria,  252,  308. 

Finland,  democratic  government,  3; 
unicameral  legislature,  38;  signs 
Baltic  States'  Treaty,  61;  pro- 
portional representation,  84,  96- 
97;  status  of  under  Russia,  465-466; 
fundamental  laws  of  1906-07,  466; 
effect  of  Russian  revolution  on,  466- 
467;  independence  of,  467;  German 
domination  ousted,  467;  recognition 
of,  467;  constitution  of,  468-495. 

Fisher,  H.  A.  L.,  quoted,  10,  11,  12, 
13,  56,  57,  58,  59. 

Fiume,  D'Annunzio's  constitution  not 
included,  vi,  Jugoslavs  in,  343-344. 

Foreign  affairs,  democratization  of, 
2,  136;  of  British  Dominions,  2;  in 
new  states,  136-137,  150-151;  con- 
trol in  United  States,  138;  control 
by  monarchs,  139;  influence  of 
press,  139;  former  control  in  Russia, 
139;  in  Germany,  139-140,  151; 


influence  of  Victoria,  140-143;  of 
Edward  VII,  143-146;  of  George  V, 
146;  recent  English  practice,  147- 
149;  committee  on,  proposed  in 
England,  147;  Norwegian  practice, 
149-150;  Swedish  practice,  150; 
French  practice,  150. 

France,  borrowed  from  English  con- 
stitution, 8;  lessons  from,  9,  repub- 
licanism, 11;  discontent  with 
representative  government,  16; 
Socialist  congresses  in,  20;  type  of 
responsible  government,  27,  29-30, 
40;  constitution  borrowed  by 
Czechoslovakia  and  Poland,  28; 
avoided  by  most  new  states,  29; 
government  contrasted  with  that 
of  England,  29-30;  tenure  of 
Cabinets,  30;  President  contrasted 
with  German  President,  30;  with 
Polish  President,  31;  commissions 
in,  34;  second  chamber,  50-51,  53; 
attitude  toward  independent  Rhen- 
ish state,  63;  proportional  repre- 
sentation, 84,  105-108;  control  of 
foreign  affairs,  136,  150;  wartime 
socialism,  160;  defeat  in  1870,  169; 
recognizes  Czechoslovakia,  251; 
Esthonia,  453;  influence  in  Es- 
thonia, 454;  note  on  constitutional 
history,  521-523;  text  of  funda- 
mental laws,  523-549. 

Franklin,  Benjamin,  quoted,  54. 

Functional  representation,  an  old  idea, 
117;  theoretical  proposals  for,  118, 
119;  difficulties  of  working  out,  119; 
under  German  Council  system,  119- 
132;  and  agreement  between  Ger- 
man Government  and  trade-unions, 
135;  in  Austria,  135,  242,  249;  in 
Poland,  135;  in  Jugoslavia,  135; 
in  Danzig,  135. 

Gajac,  Jean,  quoted,  154. 

Galicia,  241,  247,  250,  308. 

Gardiner,  A.  G.,  quoted,  17,  22,  44. 

Genoa  Conference  of  1922,  Poland 
stands  with  Petite  Entente,  61;  Ger- 
many and  Poland  agree  on  Upper 
Silesia,  66. 

Georg,  Edouard,  cited,  152,  153. 

George,  Lloyd,  relations  with  press, 
22;  with  House  of  Commons,  28-29; 
position  on  reform  of  House  of 
Lords,  41-42;  views  on  danger  of 
small  states,  55-56;  on  submission 
of  treaties  to  Parliament,  148;  on 
Poland,  427. 


INDEX 


607 


George  V,  influence  on'foreign  affairs, 
146. 

Georgia,  3. 

Germans,  in  Czechoslovakia,  76-77; 
in  Austria,  241,  247,  250,  308,  344; 
in  the  Danzig  corridor,  426-427;  in- 
vade Esthonia,  453. 

Germany,  a  composite  system,  3; 
type  of  monarchy,  7;  Bismarck's 
influence,  11-12;  little  republican 
sentiment,  15;  monarchs  and  prin- 
ces abdicate,  15;  type  of  government 
under  new  constitution,  28;  execu- 
tive in  states  of,  28,  32;  President 
contrasted  with  French  President, 
30;  powers  of  President,  30-31; 
dissolution  of  state  legislatures,  33; 
control  of  executive,  35;  constituent 
assembly,  35;  former  Bundesrat, 
38,  53;  former  federal  system,  39, 
62;  problem  of  federalism,  62-64; 
creation  of  new  states,  64-65,  68; 
amendment  of  constitution  of  in  re 
Upper  Silesia,  66;  loses  part  of 
Upper  Silesia,  66;  number  of  states, 
67;  character  of  federal  system, 
68-71;  legislative  centralization, 
69-70;  administrative  centrali- 
zation, 70-71;  amendment  of  con- 
stitution, 71;  union  with  Austria 
prevented,  T4, 187-188,  255;  propor- 
tional representation,  84,  97-102; 
functional  representation,  119-132; 
Council  system,  119-132;  revo- 
lution, 119;  monarchist  insurrection, 
133;  agreement  of  Government  with 
trade-unions,  133-134;  former  con- 
trol of  foreign  affairs,  136,  139-140; 
national  control  of  industry  en- 
couraged by  Peace  treaties,  161-162; 
former  confederation  of  states, 
167-169;  formation  of  constitution 
of  1871,  167-169;  victory  over 
France  in  1870,  169;  political  effects 
of  military  collapse  in  1918,  169; 
revolution  of  1918,  170-172; 
Workers  and  Soldiers  Councils,  170- 
172,  174;  constituent  assembly, 
172-173;  provisional  government, 
173-174;  adoption  of  constitution, 
175;  constitution  of,  176-212;  Prus- 
sia's position  under  Empire,  213- 
214;  new  constitutions  of  states, 
215,  233-240;  offers  to  negotiate 
peace,  251;  addressed  by  President 
Wilson,  252;  renounces  rights  in 
Danzig,  427-428;  control  over 
Finland  ousted,  467. 


Giese,  P.,  cited,  72,  175;  quoted,  17S. 

Giolitti,  Giovanni,  proposal  of,  to 
submit  treaties  to  Parliament, 
149. 

Gladstone,  W.  E.,  foreign  policy  of, 
139;  and  Queen  Victoria,  143; 
quoted,  147,  164. 

Goblet,  F.,  cited,  93. 

Goldenweiser,  E.  A.,  cited,  380. 

Gollomo,  Joseph,  cited,  175. 

Gordon,  J.  W.,  cited,  175. 

Grant,  N.  F.,  cited,  140. 

Great  Britain,  recognition  of  Czecho- 
slovakia, 251;  of  Esthonia,  453;  of 
Finland,  467;  see  also  British  Em- 
pire and  England. 

Greece,  15,  84. 

Hainisch,  Michael,  256. 

Haldane,  Lord,  quoted,  46,  49. 

Hall,  Duncan,  cited,  12,  78. 

Ha  Ham,  Henry,  quoted,  143. 

Hamilton,  Alexander,  quoted,  401. 

Hapsburgs,  yield  to  constitutionalism, 
9;  Petite  Entente  opposes,  60; 
absolutism,  241 ;  support  at  outbreak 
of  war,  250;  relation  to  Jugoslavs, 
343—345 

Harper,  S.  N.,  cited,  380. 

Hayes,  C.  J.  H.,  quoted,  13. 

Heatley,  cited,  147. 

Heidenstam,  E.  von,  cited,  84. 

Hertling,  Count  von,  213. 

Holcombe,  Arthur  N.,  cited,  175. 

Hoetzendorff,  Conrad  von,  344. 

Hoetzl,  J.,  quoted,  34,  35,  36,  159. 

Hohenlohe,  Prince,  213. 

Hobenzollerns,  yield  to  constitutional- 
ism, 9;  defeated,  14;  idiosyncrasies, 
140;  see  also  William  II. 

Holland,  nationality,  3;  constitutional 
monarchy,  7;  self-government,  57; 
proportional  representation,  84, 114. 

House,  E.  M.,  and  Seymour,  cited, 
427. 

Humphreys,  J.  H.,  cited,  84,  89,  93, 
97,  quoted,  92,  94,  98,  112. 

Hungary,  no  new  constitution  in,  vi, 
industrial  need  of,  59;  check  on,  by 
Petite  Entente,  60;  parts  merged 
into  Jugoslavia,  77;  common  law 
constitution,  155;  position  prior  to 
1867,  241-242;  proposed  scheme  of 
Dualism,  243;  ratified  AusgUich, 
244;  outweighed  Austria  in  in- 
fluence, 245-246;  geography,  246; 
opposed  annexation  of  Serbia,  250; 
opposed  Mittel  Evropa,  250;  food 


608 


INDEX 


blockade     against     Austria,     £50; 
deserts   Austria,    252;   government 
of  Jugoslavs  in,  343. 
Hussarek,  Baron  Max,  quoted,  251; 
resignation,  253. 

Imperial  federation,  78. 

Imperialism  and  monarchy,  12. 

Initiative,  and  referendum  in  new 
constitutions,  10;  in  Esthonia,  32- 
33;  for  creation  of  new  states  in 
Germany,  64-65;  see  also  Refer  en 
dum. 

Ireland,  2,  79. 

Istria,  77,  343. 

Italians,  in  Austria,  241,  247,  251. 

Italy,  a  composite  system,  3;  con- 
stitutional monarchy,  7;  responsible 
government,  40;  second  chamber,  45, 
117;  proportional  representation, 
84,  102-104;  control  of  foreign 
affairs,  136,  149;  Austro-Hungarian 
territory  to,  251;  recognizes  Es- 
thonia, 453;  note  on  constitutional 
history,  550;  constitution  of,  551- 
564. 

Jackson,  Sir  Harry,  quoted,  138-139. 

Jacobi,  E.,  quoted,  70-73. 

Jellinek,  W.,  cited,  72. 

Joachim,  V.,  cited,  109. 

Judicial  supremacy,  in  United  States, 
154;  under  new  constitutions,  155, 
158-159. 

Jugoslavia,  constitutional  monarchy, 
3,  28;  unicameral  legislature,  38; 
industrial  need,  59;  member  of 
Petite  Entente,  60;  composition,  77; 
proportional  representation,  84, 114, 
348;  functional  representation,  135; 
independence  of,  252-253,  309,  345; 
recognition  of,  346;  constituent 
assembly,  346;  constitution  similar 
to  former  Serbian,  347-348;  consti- 
tution of,  348-378. 

Jugoslavs,  in  Austria-Hungary,  251, 
308,  343;  proposed  solution  of 
problem,  343-345;  union  of,  346. 

Kant,  Emanuel,  quoted,  13. 
Kapp,  Wolfgang  von,  133. 
Kautsky,  Karl,  cited,  140. 
Kelsen,  Hans,  cited,  254,  255. 
Kerensky,    Alexander   F.,    115,   467; 

cited,  381. 
Krafft,  A.  F.,  and  Leresch,  A.,  quoted, 

110.  111. 


Laband,  quoted,  168. 

Lachapelle,  G.,  cited,  93. 

Lammasch,  Heinrich,  253. 

Lana,  Treaty  of,  60. 

Lansdowne,  Lord,  143. 

Latvia,  no  constitution  yet  adopted, 
vi;  signs  Baltic  States'  Treaty,  61. 

Law,  Bonar,  and  the  Mesopotamian 
mandate,  148-149. 

League  of  Nations,  and  increased 
number  of  states,  55;  and  Upper 
Silesia,  66;  end  Mesopotamian 
mandate,  148;  Swiss  referendum  on 
joining,  152;  Danzig  under  protec- 
tion of,  427;  approves  Danzig 
constitution,  429,  448-451. 

Lee,  Francis  B.,  cited,  499. 

Legislative  power,  during  war,  1; 
separation  of,  6,  9;  relation  to 
executive  in  new  constitutions,  26- 
33;  control  over  administration, 
34-37;  organization  in  new  consti- 
tutions, 38-41. 

Legislators,  decline  in  character,  17- 
21;  control  by  party,  19;  pay,  19,  29. 

Lenin,  Vladimir  Ilich,  382,  383,  467. 

Levinski-Corwin,  cited,  402. 

Liberty,  individual,  see  Bills  of  Rights 
and  Judicial  supremacy. 

Liebknecht,  Karl,  171,  172. 

Liechtenstein,  3,  15. 

Lindsay,  S.  M.,  and  Rowe,  L.  S., 
cited,  551. 

Little  Entente,  see  Petite  Entente. 

London,  Treaty  of,  345. 

Lord,  R.  H.,  quoted,  427. 

Lords,  House  of,  discussion  of,  40-54. 

Loreburn,  Lord,  cited,  136,  147,  149. 

Lowell,  A.  L.,  cited,  27. 

Luttwitz,  General  von,  133. 

Luxemburg,  Rosa,  171,  172. 

Lvov,  Prince,  467. 

MacDonald,  J.  R.,  cited,  17. 

MacDonald,  Murray,  quoted,  79-82. 

MacDonald,  William,  cited,  37. 

Mcllwain,  C.  H.,  quoted,  155. 

McKechnie,  cited,  43. 

MacNeill,  J.  G.  Swift,  quoted,  145. 

Magyars,  and  Petite  Entente,  60;  in 
Czechoslovakia,  76;  dominated 
Hungary,  245-246;  opposed  annex- 
ation of  Serbia,  250;  and  Trialism, 
344. 

Maine,  Sir  Henry,  quoted,  8,  13,  14. 

Mannerheim,  C.  G.  E.,  467. 

Marriott,  J.  A.  R.,  quoted,  22,  26,  43, 
58. 


INDEX 


609 


Masaryk,  Thomas  G.,  308,  309. 

Masterman,  C.  F.  G.,  quoted,  44-45. 

Matter,  Paul,  cited,  215. 

Max  von  Baden,  Prince,  170,  213. 

Mellor,  William,  quoted,  16. 

Mesopotamian  mandate,  148-149. 

Meuschel,  Adelheid,  paraphrased, 
233-240. 

Mill,  John  Stuart,  cited,  153. 

Minorities,  under  new  constitutions, 
10;  treaties,  83;  coalition  of,  neces- 
sary in  European  states,  89. 

Monarchists,  in  Germany,  133,  171. 

Monarchs,  and  foreign  affairs,  139- 
146. 

Monarchy,  strength  of,  11-14. 

Moneypenny  and  Buckle,  cited,  142, 
143. 

Montenegro,  77,  343,  346. 

Montesquieu,  5,  7. 

Moravia,  241,  247,  307. 

Morel,  E.  D.,  cited,  136,  149. 

Morgan,  J.  H.,  quoted,  51-54. 

Morley,  Lord,  quoted,  8,  25,  115,  116. 

Mousset,  Albert,  cited,  346. 

Muir,  Ramsay,  quoted,  42,  43,  45. 

Munro,  William  Bennett,  cited,  175. 

Myers,  D.  P.  cited,  140. 

Nationalism,  in  19th  century,  8-9. 

Nationality,  principle  of,  2. 

Nationalization,  during  war,  1;  new 
constitutions  invite,  159;  philoso- 
phy of,  159-162. 

Navaisky,  cited,  176. 

Neilson,  F.  cited,  136. 

North  German  Confederation,  167- 
169. 

Norway,  proportional  representation, 
114;  control  of  foreign  affairs,  136, 
149-150. 

Olgin,  M.  J.,  cited,  381,  384. 
Ostrogorski,  M.,  quoted,  87-88. 
Owen,  Robert,  382. 

Pacts,  K.,  453. 

Palandech,  J.  R.,  348. 

Palmerston,  Lord,  141. 

Panachage,  see  Proportional  represen- 
tation. 

Parliamentary  government,  under  new 
constitutions,  26-33,  164;  types 
of  before  war,  27;  with  two  coequal 
chambers,  39-41;  in  France,  50-51. 

Peace,  legislatures  declare,  in  new 
states,  150. 

Peace  Conference,  creates  new  states, 


t,  55;  creates  Free  City  of  Danzig, 
426-427;  recognizes  Finland.  467. 

Peace  treaties,  encourage  national 
control  of  industry,  161-162;  see 
also  under  names  of  treaties. 

Pedersen,  Oscar,  cited,  160. 

Petite  Entente,  formation  and  purpose 
of,  60;  future  of,  60-61. 

Petitjean,  T.,  cited,  93. 

Pilsudski,  Joseph,  403. 

Plebiscite,  in  East  Prussia,  63;  in 
Upper  Silesia,  63,  65-66. 

Poetsch,  cited,  72,  176. 

Poincare,  Raymond,  cited,  140. 

Poland,  democratic  government,  3; 
character  of  constitution,  26,  28; 
powers  of  President,  31;  and  Petite 
Entente,  61;  signs  Baltic  States' 
Treaty,  61;  separates  East  Prussia 
from  Prussia,  63;  secures  part  of 
Upper  Silesia,  66;  proportional 
representation,  84,  113-114;  func- 
tional representation,  135;  medieval 
state  revived,  307;  constitution  of 
1791,  401-402;  partitions  of,  402; 
Russian  proposal  in  re,  403;  German- 
Austrian  proposal  in  re,  403;  Coun- 
cil of  Regency,  403;  constituent 
assembly,  403;  constitutional  prob- 
lems, 404;  constitution  of,  405-425; 
geography,  426;  and  Danzig,  428. 

Poles,  in  Austria,  241,  246,  247,  250, 
308;  under  alien  domination,  402; 
ambition  of,  at  Peace  Conference 
426. 

Political  parties,  discipline,  19;  num- 
ber in  France,  30;  in  new  states 
30,  89;  in  England,  attitude  toward 
House  of  Lords,  42-44;  basis  of, 
85-86;  facts  and  theory,  86-87;  and 
organization,  87;  Bryce  on,  87; 
Ostrogorski  on,  87-88;  two  vs.  many, 
88;  and  proportional  representation, 
88;  cohering  agency  of,  89;  in  Den- 
mark, 92;  in  Belgium,  92;  in 
Germany,  101,  170-174;  in  Italy, 
104;  in  France,  106;  in  Czecho- 
slovakia, 109;  in  Switzerland,  112- 
113;  in  Poland,  114;  in  Prussia, 
215;  in  Austria,  249,  254-255;  in 
Jugoslavia,  346;  in  Russia,  379-380; 
in  Danzig,  428. 

Pollard,  A.  F.,  quoted,  7;  cited,  78. 

Ponsonby,  A.,  cited,  136,  147. 

Portugal,  3,  7,  84. 

Posener,  Paul,  cited,  499,  523,  551. 

Poska,  Jaan,  45& 

Postgate,  R.  W.,  cited,  382,  383. 


612 


INDEX 


United  States,  a  composite  system,  3; 
discontent  with  representative  gov- 
ernment, 16;  political  influence  of 
trade-unions,  20;  type  of  govern- 
ment, 27-30;  did  not  attract  new 
states,  28;  contrasted  with  French 
government,  30;  legislative  process, 
49-50;  admission  of  new  states 
compared  with  German  method, 
68;  amending  process  compared 
with  German,  71;  Bureau  of  Labor 
Statistics,  126-128;  control  of  for- 
eign affairs,  138;  concept  of  consti- 
tution, 154;  wartime  socialism  in, 
160;  Constitutional  Convention, 
168;  recognition  of  Czechoslovakia, 
251;  attitude  toward  Czecho- 
slovakia in  Jugoslavia,  309; 
influence  in  Esthonia,  454;  recog- 
nition of  Finland,  467. 

Upper  Silesia,  possible  separation 
from  Prussia,  63-66;  plebiscite,  63, 
65-66;  importance  of,  65;  Inter- 
Allied  Commission  on,  66;  proposed 
Mixed  Commission  for,  66;  agree- 
ment at  Genoa  Conference,  66. 

Vandervelde,  cited,  381. 

Versailles,  Treaty  of,  provision  re 
Upper  Silesia,  65;  re  union  of  Ger- 
many and  Austria,  74;  re  Danzig, 
427-428;  see  also  Peace  Treaties. 

Victoria,  Queen,  influence  on  mon- 
archy, 11;  over  foreign  affairs,  140- 
143. 

Vienna,  relation  to  Lower  Austria,  75; 
see  also  Congress  of  Vienna. 

Vincent,  J.  M.  and  A.  S.,  cited,  499. 

Vinogradoff,  Paul,  cited,  380. 

Voltaire,  quoted,  401-402. 

Wales,  separate  legislature  for,  79-82. 

Walks,  Graham,  cited,  12,  14. 

War,  legislatures  in  new  states  de- 
clare, 150. 

Webb,  S.  and  B.,  cited,  12, 17,  37, 118, 
119. 


Weimar,  57,  173. 

Wekerle,  Santor,  quoted,  252. 

Wells,  H.  G.,  quoted,  14,  162;  cited, 
139. 

Westphalia,  Peace  of,  2;  and  a  Rhenish 
state,  63. 

William  II,  of  Germany,  influence  on 
foreign  affairs,  14,  139-140;  ab- 
dication of,  170,  214;  Chancellors 
of,  213;  see  also  Hohenzollerns. 

Williams,  Fisher,  cited,  89. 

Willoughby,  W.  W.,  and  Rogers,  L., 
cited,  7,  13,  21,  30,  34,  52,  82,  140, 
143,  147,  175. 

Wilson,  Woodrow,  influence  against 
monarchy,  15;  "fourteen  points," 
251,  309;  addresses  German  Chan- 
cellor, 252;  ignores  Austria- 
Hungary,  252;  demands  indepen- 
dence of  Czechoslovakia  and  Jugo- 
slavia, 252,  308-309;  on  Poland, 
426-^.27. 

Wolfe,  H.  W.,  and  Andrews,  A.  L, 
cited,  348. 

Woman's  suffrage,  1. 

Workers  Chambers,  in  Austria,  135. 

Workers  Councils  in  Germany,  Fac- 
tory, District,  and  Reich,  121,  130; 
of  the  Reich  not  yet  established, 
128;  see  also  Factory  Workers  Coun- 
cils and  Soldiers  and  Workers  Coun- 
cils. 

Works  Councils,  see  Factory  Workers 
Councils. 

Wright,  Herbert  F.,  cited,  347; 
quoted,  499,  521-523;  550-551. 

Wiirttemberg,  proportional  repre- 
sentation, 97;  treaty  with  North 
German  confederation,  169;  govern- 
ment under  constitution  of  1919, 
236-237. 

Young,    George,    quoted,    120,    173; 

cited,  175. 
Yugoslavia,  see  Jugoslavia. 

Zeuthen,  F.,  quoted,  91. 


